Title 1 Tribal Court Code

Chapter 1.01 General Provisions

1.01.010 Authority

This Tribal Court Code shall become effective when adopted by resolution of the Bad River Tribal Council pursuant to the inherent authority vested in the Bad River Band of the Lake Superior Tribe of Chippewa Indians, retained and acknowledged by the Constitution of the Band adopted pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984) as amended and shall apply to all members, and provided herein to non-members who, through either their residence, presence, business dealings, other actions or contact with the Band or other significant contracts with the Band and or its residents, commit criminal offenses in violation of the laws of the Band or incur civil obligations to persons or entities entitled to the protection of laws of the Band.

1.01.020 Repeal of Prior Inconsistent Ordinances

Any and all ordinances or portions thereof heretofore enacted by the Tribal Council which are in any way conflict with the provisions of this Civil and Criminal Code are hereby repealed.

1.01.030 Interpretation of This Code

This Code shall be interpreted pursuant to the customs and traditions of the Bad River Band of Lake Superior Tribe of Chippewa Indians. Where any doubt arises as to these customs and traditions, the Court may request the advice of counselors familiar with these customs and traditions. If none such exist, then the Court may use appropriate Federal or State law as guidelines.

1.01.040 Severability Clause

Should any section of this Civil and Criminal Code be determined as unconstitutional by any court of proper jurisdiction, that determination shall not affect any other provisions of this Civil and Criminal Code.

1.01.050 Future Amendments of the Court Code

This Court Code may be amended by ordinance of the Tribal Council and any amendments adopted shall be effective and become part of this Code as provided in the amending ordinance, subject however to review by the Secretary of the Interior as provided in Article VI, Sec. 1(g) of the Bad River Tribal Constitution.

1.01.060 Administrative Procedure: Notice of Intent to Adopt a Code or Availability of Draft Environmental Review Statement

(a) Purpose The purpose of this ordinance is to provide notice of intent to the public and by the Tribe to:

(1) adopt and/or review a code, or

(2) availability of a draft environmental review statement, and/or

(3) other actions identified by the Tribe requiring public notice and comment.

(b) Definitions "Public," used as a noun, means Members of the Tribe and other persons or entities upon whom a Lease-related activity may reasonably be expected to have a particular and material impact.

"Right-of-Way" means an easement or a legal right to go over or across Tribal Land for a specific purpose, including but not limited to building and operating a line or road. Right-of-way does not include Service Lines.

"Service Line Agreement" means the agreement between the Tribe and a service provider required by 25 C.F.R. Part 169, Subpart B, pursuant to which a service provider may install a Service Line over Tribal Land to provide services to the owners or authorized occupants or users of land.

"Tribe" means the Bad River Band of Lake Superior Chippewa Indians

(1) Notice of intent and/or availability shall be published in a manner calculated to reach the public, including:

(A) Posting notice on the Tribe's website for thirty days; and

(B) posting a hard-paper copy at the Tribe's government offices and at other locations where public notices are usually posted; and

(C) posting the action items requiring public notice and comment for no less than 30 days unless the Tribal Council has made an exception for select circumstance(s), in which the period may be shortened to 15 days, with the understanding of the affects the safety and welfare of interested parties.

(2) The notice of intent or availability shall state that:

(A) A Code, Right-of-Way Agreement, Lease, and/or other action items are under consideration for approval pursuant to this Ordinance;

(B) a copy of all action items, including the code or draft environmental review statement, shall be available for review by any member of the Public at a named place during specified hours; and

(C) any Member of the Public may, within 30 days after publication of the notice, make comments, by email or letter, to the Executive Secretary regarding significant effects a code or proposed right-of-way transaction may have on the environment.

(D) The date, time, and location of a Public Hearing on the code or draft environmental review statement.

(3) Public Hearing shall be conducted within the mandatory posting and comment period and shall be open to the entire public.

Chapter 1.02 Definitions

1.02.010

As used in this code, the following terms shall have the meanings given to them in this section.

(a) "Bad River Reservation" shall mean all lands and waters regardless of ownership within the exterior boundaries of the reservation as designated in the Treaty of 1854 between the Chippewa Indians of Lake Superior and the Mississippi, and the United States, 10 Stat. 1109, and any lands or water or interests therein which may be held or acquired outside the reservation by or on behalf of the Band.

(b) "Tribal Council" shall be the duly constituted Tribal Council of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(d) "Bad River Tribal Court" shall mean the duly constituted court of the Tribe.

(e) "Jury" shall mean six (6) persons drawn from the list of eligible jurors empowered to decide matters of fact and to give a verdict according to the evidence.

(f) "Juror" shall mean a tribal member at least eighteen (18) years of age who served upon a jury.

(g) "Clerk of Court" shall mean an officer of the Tribal Court who has charge of the clerical part of its business.

(h) "Prosecutor" shall be an official or officials appointed by the Tribal Council to investigate and initiate complaints and prosecute individuals when good reason exists to believe they have committed infractions of Tribal Codes or ordinances.

(i) "Complaint" shall mean a formal, written allegation against a party.

(j) "Subpoena" shall mean a writ commanding the designated person to appear and testify and/or produce physical evidence.

(k) "Search Warrant" shall mean an order in writing issued by a tribal judge directing authorized tribal enforcement personnel to search specific persons and/or property.

(l) "Appellate Court" or "Court of Appeals" shall mean the Court established by Section 1.03.090, with procedures established by Chapter 1.21.

(m) "Juvenile" shall mean any individual who has not yet had his or her eighteenth birthday.

(n) "Tribe" shall mean the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(o) "Person" means any natural or legal person, including corporations, governmental units, and agencies thereof.

(p) "Tribal Holiday" means New Year's Day, day after New Year's Day, Martin Luther King Day, President's Day, Good Friday from 12:00 noon to 4:30 p.m., Easter Monday, Memorial Day, Independence Day, Labor Day, Indian Day (last Friday in September), Columbus Day, Veteran's Day, Thanksgiving Day, Friday after Thanksgiving Day, Christmas Eve from 12:00 noon until 4:30 p.m., Christmas Day, and the day after Christmas Day, provided that when a holiday falls on a Sunday it is observed on the following Monday and when it falls on a Saturday it is observed on the following Monday and when it falls on a Saturday it is observed on the preceding Friday.

Chapter 1.03 Establishment and Duties

1.03.010

The Tribal Council hereby establishes a Tribal Court which shall have jurisdiction as provided by Section 106 or other applicable tribal law.

1.03.020

Anyone entering the Bad River Reservation consents to the jurisdiction of the Bad River Tribal Court.

1.03.030

The Court shall consist of one chief judge to be selected by the Tribal Council and such associate judges as the Council may deem necessary.

1.03.040

All penalties and forfeitures assessed shall be in accordance with the provisions adopted in this code. In no case, however, shall a fine exceed $5,000.00 or a term of incarceration exceed one year for each violation.

1.03.050

The Court will convene at such location and at such times as shall be designated by the Court.

1.03.060

The Court shall collect all fines, forfeitures and other monies generated through enforcement of Tribal Ordinances.

1.03.070

All receipts shall be disposed of as prescribed by Tribal Council.

1.03.080

Court personnel shall be selected under standards established by the Tribal Council.

1.03.090

A Court of Appeals is hereby established, consisting of the judges of other tribal courts who from time to time consent to sit on a panel of three judges to hear appeals cases.

1.03.100

A Court of Appeals panel, consisting of three judges, shall be selected by the Clerk of the Court of Appeals upon the proper filing of appeal.

Chapter 1.04 Judges

1.04.010

Any person over the age of 30 who is generally knowledgeable in the laws applicable upon the Bad River Reservation shall be eligible for appointment as judge.

1.04.020

Any judge of the Bad River Tribal Court may be suspended, dismissed, or removed after written notice and fair hearing in executive session, by a two thirds vote of the Tribal Council for just cause. Each judge shall be appointed for a term of six (6) years, unless sooner removed for cause, or unless elected to the Tribal Council, and shall be eligible for reappointment.

1.04.030

No individual shall serve as judge while serving as a member of the Tribal Council or as a tribal law enforcement officer. The duties of any judge who is nominated for election to the Tribal Council shall be transferred to other judges of the court pending the election. If the judge shall be elected to the Tribal Council, his term of judge shall terminate at 12:01 midnight the day prior to the commencement of his term on the Tribal Council.

1.04.040

No judge shall be qualified to act in any case wherein he or she has any direct interest. A tribal judge shall not, unless his service is agreeable with all parties, sit on any case wherein his or her spouse, mother, father, sister, brother, son, daughter, grandfather, or grandmother, is a party.

1.04.050

In case of a vacancy, the judgeship will be filled by an appointment through a majority vote of the Bad River Tribal Council.

1.04.060

It shall be the duty of the court to judge all cases brought before it.

Chapter 1.05 Civil Procedures

1.05.010

Sessions of the Bad River Tribal Court shall before the chief judge or an associate judge.

1.05.020

All actions for violations of Tribal Ordinances shall be brought in the name of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

1.05.030

Any person appearing as a defendant in a civil case or action in the Bad River Tribal Court shall have the right to be represented by a spokesman or an attorney at his own expense provided that such spokesman or attorney has made proper application to this court for admission to practice before it. Such application procedures shall be established by the Tribal Court.

1.05.040

All trials shall be conducted in a manner so as to afford all those who appear before it all rights guaranteed by the Indian Civil Rights Act of 1968, 25 U.S.C. Secs. 1301, 1302, and 1303, as amended.

1.05.050

The court in its discretion may assess court costs against a defendant found to have violated a tribal ordinance.

1.05.060

The court in its discretion may apportion and assess court costs, against the parties to a civil action. In any case in which the court has appointed a guardian ad litem, psychologist or other witness, or ordered a social services study, the costs therefore may be assessed against the parties.

1.05.070

Except as specified herein, all records and files of the Bad River Tribal Court shall be available for public inspection during regular office hours of the Clerk of Court.

1.05.080

All juvenile files shall be closed. The may in its discretion and in the interest of privacy, deem other court files as closed files. All closed files shall be unavailable for public inspection without a court order.

1.05.090

Individuals securing documents from tribal court files or transcripts of tribal court proceedings, if available, shall, unless otherwise ordered by the court, pay the actual cost of reproduction or preparation of such material.

1.05.100 Time

(a) In computing any period of time prescribed or allowed by tribal law or by an order of the Tribal Court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a tribal holiday. When the period of time to be computed is less than 11 days, Saturdays, Sundays, and tribal holidays shall be excluded in the computation.

(b) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of a notice or other paper upon the party, and the notice or paper is served by mail, three (3) days shall be added to the prescribed period.

(c) When an act is required to be done at or within a specified time, the court may order the period enlarged upon motion for cause shown and upon just terms. If the action is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.

1.05.110 Judicial Rules

The Tribal Court may adopt such procedural rules for the operation of Tribal Court and the regulation of the Bad as it deems proper.

Chapter 1.06 Jurisdiction

1.06.010

(a) The Bad River Tribal Court shall have jurisdiction over all matters in the following categories:

(1) All actions arising between persons situated on the Bad River Reservation in relation to property or events upon the reservation.

(2) All actions arising out of events or occurrences on the Bad River Reservation, regardless of whether the individuals who are parties thereto reside on or off the reservation or are members or non-members of the Tribe.

(3) All alleged violations of ordinances duly in effect upon the Bad River Reservation whether the alleged violator is a member or non-member of the Bad River Band or resides on or off the Bad River Reservation.

(4) All alleged violations of ordinances duly in effect pertaining to hunting, fishing, trapping or gathering by members in the territory described in Article I, Section 2 of the Bad River Constitution.

(5) Any other case otherwise provided by tribal ordinance.

(b) If any court of competent jurisdiction determines that the Tribal Court cannot lawfully assert jurisdiction over any class of individuals or claims as described in para. (a), above, the assertion of jurisdiction over all remaining classes of individuals or claims shall not be effected thereto.

Chapter 1.07 Clerk of Court

1.07.010

The Bad River Tribal Council shall appoint a Clerk of Court for the Tribal Court. The Clerk shall render assistance to the court, to the enforcement personnel, and to all persons having business with the court. It shall further be the duty of the Clerk to attend and keep a written record of all proceedings of the court, to administer oaths to witnesses, to receive the transcript of cases and other papers on appeal and make a permanent record properly filed, to collect all penalties, forfeitures and other receipts and to pay out fees authorized by court and Tribal ordinances. The Clerk shall make periodic accountings to the Tribal Council and to the Tribal Court of all funds received and disbursed. Such accounting shall be made at least quarterly, and upon request by either the Tribal Council or the Tribal Court.

1.07.020

The salary and term of office of the Clerk of Court shall be determined by the Tribal Council.

1.07.030

The Clerk of Court shall also serve as the Clerk of the Court of Appeals.

Chapter 1.08 Prosecutor

1.08.010

One or more persons shall be appointed by the Tribal Council to serve as prosecutor or prosecutors for such term and for such compensation as shall be specified. Unless otherwise specified the Tribal Attorney shall be deemed appointed prosecutor.

1.08.020

Prosecutors shall receive complaints from members and non-members and shall have the power to file complaints on his or her own authority. It shall be the responsibility of the prosecutor to present cases on behalf of the Tribe to the Tribal Court, but a prosecutor shall present only those cases in which he or she finds, upon investigation, that there is reasonable justification for the complaint.

Chapter 1.09 Court Records

1.09.010

The Tribal Court shall keep a record of proceedings of the court, which record shall reflect the title of the case, the names of the parties, the name of the judge assigned, the substance of the complaint, the date, the nature and appearances at all proceedings, the findings, conclusions, and judgment of the court, together with any other facts or circumstances deemed pertinent to the case.

Chapter 1.10 Complaints and Answers

1.10.010

(a) No complaint filed in the Tribal Court shall be valid unless it shall bear the signature of the plaintiff, plaintiff's counsel, or complainant. Upon the filing of the complaint, the Clerk shall issue a summons to which shall be attached a copy of the complaint directing the defendant to appear before the court to answer the complaint at the time and place specified. Any summons in a civil case, other than an action filed by the Tribe for violation of an ordinance, and seeking either damages or injunctive relief, or both, shall require that a written answer be served on the complainant and the court within not more than thirty (30) days from the date of service of the summons and copy of complaint.

(b) At the time and place, and in the manner properly specified by the summons, the defendant shall answer the complaint. Such answer, in the case of an action filed by the Tribe for the violation of an ordinance shall admit or deny the charge, or the defendant shall stand mute or plead no contest. In all other cases the answer shall admit or deny each of the allegations of the complaint, and shall assert any grounds for dismissal, any permitted affirmative defense, any counter claims, and any third-party claims.

(c) Any case charging a defendant with violation of a tribal conservation ordinance may be commenced by filing of a citation containing the time, date, and place of the alleged violation, the name (if known) of the alleged violator, the date of birth and address (if known) of the alleged violator, the section alleged to have been violated, a brief summary statement of the facts constituting the violation, a notification to the alleged violator of the date he or she is required to appear in Tribal Court, and the sworn signature and date of issuing officer.

(d) Any other type of case may be commenced as otherwise provided for by ordinance.

Chapter 1.11 Service

1.11.010

A summons and complaint shall, whenever possible, be served on a defendant by personal service. Personal service shall consist of delivery of the summons and complaint to the defendant in person or to any person of apparent normal understanding residing within the residence of the defendant. Any person over eighteen (18) years of age, not a party to the action, may make personal service. In the case of personal service, an affidavit of service shall be returned to the Clerk and filed in the docket and shall constitute proof of personal service.

1.11.020

When the summons and complaint cannot by reasonable diligence be personally served on the defendant in the manner specified in Article XI, Section 1, service may be made either by mail or publication. In the case of service by mail, true copies of the summons and complaint shall be sent by registered or certified mail to the defendant's last known address. A return receipt for mail delivery signed by the defendant shall be returned to the Clerk and filed in the docket and shall constitute proof of service by mail.

1.11.030

In the event the defendant cannot be served with summons and complaint either personally or by mail in accordance with sections 111.1 or 111.2, service may be made by publication. Service by publication shall mean publication of the summons once in each of two consecutive weeks in a newspaper of general circulation whose readership is primarily located in the vicinity of the Bad River Reservation. The published summons shall state the address at which the complaint may be obtained. Proof of publication of the summons shall be returned to the Clerk and filed in the docket and shall constitute proof of service by publication.

1.11.040

Service of all papers filed in action subsequent to the summons and complaint may be in person or by first class mail. The filing of a paper with the court is the filer's certificate that a copy thereof has been properly served on the other parties.

1.11.050

The court may provide notice to any party appearing in open court of any subsequent proceeding by orally so informing the party in which case the minutes shall reflect such notice or by causing written notice to be hard served upon the party in open court.

Chapter 1.12 Judgment

1.12.010

All judgments shall be ordered in writing. All judgments shall be accompanied by findings of fact and conclusions of law which shall be made in writing or on the record in open court.

1.12.020

Upon failure of a defendant to appear at the time stated in the summons, the plaintiff may proceed to offer evidence including proof that the defendant was served with summons and the court may render a judgment granting such relief as the evidence warrants, provided that the defaulting party may apply in writing to reopen the case within twenty (20) days of a default judgment upon showing good cause for his failure to answer the summons. Upon failure of the plaintiff without just cause to appear at the time set by the summons for hearing, the court may dismiss the action with or without prejudice.

1.12.030

In addition to, or in lieu of, a penalty or forfeiture provided for violation of a tribal ordinance, the Court may order any defendant found to have violated a tribal ordinance to perform community service a specified nature and duration. The number of hours of community service ordered by the court may not exceed the maximum penalty or forfeiture provided for the violation divided by the current federal minimum wage.

Chapter 1.13 Initial Appearance

1.13.010

This chapter applies to initial appearance in civil actions brought by the Tribe of violations of ordinances.

1.13.020

At the initial appearance the judge shall read to the defendant the charge against him or her and inform him or her of the maximum forfeiture and other penalties that can be imposed.

1.13.030

The judge shall inform the defendant of the following rights:

(a) To be represented by counsel at his or her own expense.

(b) To admit or deny the charges to stand mute, or plead to no contest.

(d) To subpoena witnesses.

1.13.040

(a) If the defendant appears unrepresented by counsel and states his or her intent to retain counsel, the court shall adjourn the initial appearance in order to enable defendant to retain counsel. No defendant shall be entitled to more than one adjournment.

(b) If the defendant admits the charge, the court shall find him or her guilty. Penalty may be imposed immediately or at a later time set by the court.

(c) If the defendant pleads no contest to the court shall find him or her guilty. Penalty may be imposed immediately or at a later time set by the court.

(d) If the defendant denies the charge a trial date shall be set.

(e) If the defendant stands mute, the court shall enter a denial and set a date for trial.

Chapter 1.14 Enforcement of Court Orders

1.14.010

Any party or the court of its own motion may seek enforcement of any order by any lawful process or through any competent court of any jurisdiction.

1.14.020

(a) For failure of any defendant to pay a forfeiture or any ordered costs in any hunting or fishing, trapping, or gathering action, the court may order suspensions of any of the defendant's hunting, fishing, trapping or gathering rights until such forfeiture or costs are paid.

(b) Such suspension shall be effected by the Clerk of Court, without further order of the court, if the defendant was advised in open court of the date upon which final payment was due and that the specific suspension ordered would follow nonpayment.

(c) If the defendant was not so advised in open court, the court shall schedule and notice a hearing at which defendant shall be ordered to show cause why suspension should not be ordered. After such hearing, or upon defendant's failure to appear at such hearing, the court may order the suspension.

(d) All forfeitures not paid. When due shall accrue interest at the rate of 1«< percent per month on the unpaid balance, the first month's interest to be due on the day following the initial due date, and each subsequent month's interest accruing on the same day of each month thereafter.

1.14.030 Contempt of Court

(a) "Contempt of Court" means intentional:

(b) The Tribal Court may impose a sanction for contempt of court.

(1) Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court;

(2) Disobedience, resistance or obstruction of the authority, process or order of a court;

(3) Refusal as a witness to appear, be sworn or answer a question.

(1) A party aggrieved by a contempt of court may move for, or the court on its own motion may impose a contempt sanction. The court, after notice and hearing may impose sanction.

(2) The judge presiding in an action may impose a sanction upon a person who commits a contempt of court in the open court. The judge shall impose the sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.

(3) A court may impose one or more of the following sanctions.

(A) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as a result of the contempt of court.

(B) A forfeiture not to exceed $1,000 for each day the contempt of court continues.

(D) If the contempt arises in an action involving the exercise of off-reservation hunting, fishing, trapping, or gathering rights, a suspension of any such right.

(E) A sanction other than those specified in par. (A) through (D) if the court expressly finds that those sanctions would ineffectual to terminate a continuing contempt of court.

1.14.040 Wage Withholding

(a) For any monetary obligation incurred by virtue of any order of the court the court may order the obligator's employer, or any person owing the any money, to withhold from the amount owing to the obligator an amount certain, or a percentage of the amount owed to the obligator, and to submit it to the Clerk of Court who shall disburse it to the person to whom due under the court order.

(b) Any person ordered to make a withholding under this section may subtract and retain from other funds due the obligator other sum of $3.00 for each withholding made.

(c) Exempt from wage withholding shall be, for each one week period, 30 times the current minimum wage plus $20.00 for each dependent.

Chapter 1.15 Subpoenas

1.15.010

The judges of the Tribal Court shall have the power to issue subpoenas for the attendance of witnesses and/or production of documents or physical evidence on the request of any party to an action or on the court's own initiative, which subpoena shall bear the signature of the judge issuing it. Service of subpoenas shall be by any person not a party at least 18 years of age.

1.15.020

Service of subpoena shall be made by delivering a copy of it to the person named or by leaving a copy at his place of residence with any competent person sixteen (16) years of age or older who also resides there.

1.15.030

Proof of service of the subpoena shall be filed with the clerk of court by noting on the back of a copy of the subpoena the date, time and place that it was served and noting the name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.

1.15.040

In the absence of justification satisfactory to the court, a person who fails to obey a subpoena may be deemed to be in contempt of court.

Chapter 1.16 Criminal Procedure

Subchapter A Search Warrants

1.16.010

Every tribal judge shall have the power to issue warrants for the search and seizure of property and premises of any person under the jurisdiction of the court.

1.16.020

No warrant for search and seizure shall be valid unless it contains the name or description of the person or property to be searched and describes the articles or property to be seized and bears the signature of a duly qualified judge of the Bad River Tribal Court.

1.16.030

No warrant of search and seizure shall be issued except upon probable cause that a search will discover: stolen, embezzled, contraband, or otherwise criminally possessed property which constitutes evidence of the commission of a criminal offense. Such probable cause shall be supported by a written and sworn statement based upon reliable information.

1.16.040

Warrants of search and seizure shall be executed by authorized tribal enforcement personnel. The warrant shall be returned within the time limit shown on the face of the warrant, which in no case shall be longer than three (3) days from the date of issuance. Warrants not returned within such time limit shall be void.

1.16.050

No enforcement official conduct any search without a valid warrant unless

(a) Incident to making a lawful arrest; or

(b) With the knowing, voluntary consent of the person being searched; or

(c) When he has probable cause to believe that the person searched may be armed and dangerous, and then only to the extent necessary to detect the presence of a weapon;

(d) When the search is of a motor vehicle capable of being driven away before a warrant can be obtained, and the officer has probable cause to believe that it contains contraband, stolen or embezzled property.

1.16.060

Anyone interfering with the execution of a search warrant may be found in contempt of court.

Subchapter B Arrest

1.16.070

No tribal enforcement officer shall arrest any person for any offense set out in the Tribal ordinances except when:

(a) The officer shall have a warrant signed by a tribal judge commanding the arrest of such person; or

(b) The criminal offense shall occur in the presence of the arresting officer; or

Subchapter C Arrest Warrants

1.16.080

Every judge of the Bad River Tribal Court shall have the authority to issue warrants to arrest and such warrants shall be issued, the at the discretion of the court, only after a written complaint shall have been filed.

1.16.090

The arrest warrant shall contain the following information:

(a) Name or description and address, if known, of the person to be arrested.

(b) Date of issuance of the warrant.

(d) Signature of the issuing judge.

1.16.100

Law enforcement officials shall be empowered to seek the cooperation of other agencies outside the reservation to secure the arrest of individuals under tribal arrest warrant.

Subchapter D Arraignment

1.16.110

Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regularly scheduled session of court.

1.16.120

Before an accused is required to plead to any criminal charge, the judge shall:

(a) Read to the accused and determine that he understands the complaint and the tribal ordinance which he is charged with violating, including the maximum authorized penalty; and

(b) Advise the accused that he has the right to remain silent, to be tried by a jury; and to be represented by counsel at his own expense and that arraignment will be postponed should he desire to consult with counsel.

1.16.130

If the accused pleads "not guilty" to the charge, a trial date shall then be set and the judge shall then set the conditions for bail prior to trial.

1.16.140

If the accused pleads "guilty" to the charge, the judge shall determine that the plea is made voluntarily and that the accused understands the consequences of the plea. The judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he or she deems necessary for the imposition of a just sentence. The accused shall be afforded the opportunity to present any information he deems useful in determining the setting of bail. The court shall then upon consideration of such information and all other facts set bail at an appropriate amount.

1.16.150

If the accused refuses to plead, the judge shall enter a plea of not guilty on his or her behalf.

1.16.160

For purposes of alleged violations by corporate entities, any officer of the corporation may appear on behalf of said corporation. Any arrest warrants on behalf of the corporations are executable against any officer or executive official of said corporation.

Subchapter E Bail

1.16.170

A schedule of bail monies shall be established by the Tribal Court and made available to an individual charged with a criminal offense. The Clerk of Court or an enforcement official is authorized to accept bail in such specified amounts and to post this bail. Such bail shall only be accepted from individuals who also produce a signed agreement to appear bearing either his or her signature or mark.

1.16.180

The aforementioned bail schedule shall be utilized by the Clerk of Court and/or law enforcement officials. The Tribal Court itself may set bail in whatever amount it deems appropriate.

1.16.190

Should the Tribal Court feel any of the following will reasonably assure the appearance of the individual at any time lawfully required, the court may impose one or more of the following conditions for release form custody pending trial:

(a) Release on personal recognizance upon execution by the accused of a written promise to appear at trial and all other lawfully required times.

(b) Release to the custody of a designated person or organization agreeing to assure the accused's appearance.

(c) Release with reasonable restrictions on travel, association, or place of residence of the accused during the period of release.

(d) Release after deposition by the accused or a bondsman of bond in either cash or other sufficient collateral in an amount specified by the judge or a bail schedule.

Subchapter F Notification of Rights at Time of Arrest

1.16.200

Upon arrest, the suspect shall be advised of the following rights:

(a) The right to remain silent.

(b) That any statements made by the suspect may be used against him or her in court.

Chapter 1.17 Parties to a Violation

1.17.010

Any person who is concerned in the commission of a violation of a tribal ordinance is a principal and may be adjudged to have committed the violation although such person did not directly commit it and although the person who did directly do so has not been subject to an act or in Tribal Court. A person is concerned in the commission of a violation if such person:

(a) Directly violates; or

(b) Aids and abets the violation; or

(c) Is party to a conspiracy with one or more others to violate or advises, hires, counsels, or otherwise procures another to commit the violation.

Chapter 1.18 Juveniles

1.18.010

The class juveniles shall include all individuals who have not achieved their respective eighteenth (18) birthday.

1.18.020

Court processing of, and proceedings concerning juveniles shall be as provided in Chapter 1.25, Bad River Ordinance.

Chapter 1.19 Reserved

Chapter 1.20 Seizures

1.20.010

In any case where tribal ordinance authorizes the seizure of any perishable resource or product, the Conservation Department may hold such resource product until the Tribal Court has ruled on its ultimate disposition, or may sell such resource or product if

(a) it is not needed as evidence, and

(b) it will spoil or lose substantial part of its value if retained until ultimate disposition.

1.20.020

If the Conservation Department chooses to sell the resource or product it may do so by auction or privately to a tribal program, and shall retain the proceeds of such sale until ultimate disposition of the case, at which time the proceeds shall be disposed of as the court orders.

1.20.030

Under no circumstance where the conservation department had reasonable cause to believe that violation of a tribal ordinance providing for seizure and forfeiture of a resource or product had been committed shall the department be liable for any difference between the proceeds actually received by the conservation department and any amount claimed as the fair market value of the resource or product.

Chapter 1.21 Appeal Procedure

1.21.010 Purpose

The purpose of this chapter is to establish the procedures by which appeals are taken from the decisions of the Tribal Court.

1.21.020 Authority

This chapter is adopted pursuant to Art. VI, Sec. 1(q), of the Constitution of the Tribe.

1.21.030 Repeal of Inconsistent Ordinances

All ordinances or parts thereof which are inconsistent with this chapter are hereby repealed.

1.21.040 Definitions

(a) "Appellant" means the party filing an appeal.

(b) "Court of Appeals" means the Tribe's appellate court as established by Chapter 1.19, Bad River Ordinances.

(d) "Tribal Council" means the tribal council of the Tribe.

(e) "Tribal Court" means the trial level court of the Tribe.

(f) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

1.21.050 Exclusive Jurisdiction

(a) The Court of Appeals shall have exclusive jurisdiction to review all decisions of the Tribal Court as provided herein. The decision of the Court of Appeals shall be final as to all such review.

(b) The jurisdiction of the Court of Appeals shall include the authority to determine the constitutionality of acts of the Tribal Council.

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

Prior Codifications

§1.21.050 was formerly codified as 121.5

Commentary

Subsection (a) safeguards the authority of the Court of Appeals to perform its review function without interference from other governmental agencies either before or after it has acted.

Subsection (b) establishes the authority of the Court of Appeals to review the constitutionality of Tribal Council acts of whatever nature. Because tribal constitutions do not typically provide for a separation of powers between the judiciary and the other functions of the government, some question may be raised as to the implicit authority of the courts to review the acts of tribal government. Whatever the correct answer is to that question, this subsection delegates whatever authority is necessary to perform such review.

1.21.060 One Form of Review

There shall be one form of review in the Court of Appeals, to be designated an appeal.

1.21.070 Who May Appeal

Any party aggrieved by a decision of the Tribal Court may initiate an appeal.

1.21.080 What May Be Appealed

Any final judgment or order of the Tribal Court may be appealed to the Court of Appeals. A final judgment or order is one which disposes of all issues in litigation between at least two parties to a case.

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

Prior Codifications

§1.21.080 was formerly codified as 121.8

Commentary

All final judgments and orders may be appealed. Nothing but a final judgment or order may be appealed. If an order in a case leaves other matters to be decided, and does not completely settle all disputed issues between the parties, so that the Tribal Court still has work to do, then the order is not final and an appeal cannot be filed. In cases involving multiple parties, an order or judgment may dispose of all issues between two or more of the parties, and would therefore be appealable. In cases involving multiple issues, an order disposing of one or more issues may leave others as yet unresolved and would therefore not be appealable.

1.21.090 When an Appeal May Be Taken

(a) Notice of appeal must be filed with the Clerk of the Tribal Court, and served on all other parties, no later than 30 days after the entry of the judgment or order from which the appeal is taken. If one party has timely and properly filed a notice of appeal, any other party may file a notice of appeal within 15 days of service of the initial party's notice of appeal.

(b) A judgment or order is entered when it is filed with the Clerk of Court.

(c) Failure to file a notice of appeal as provided in this section deprives the Court of Appeals of subject matter jurisdiction in the appeal.

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

Prior Codifications

§1.21.090 was formerly codified as 121.9

Commentary

The appeal is started by filing the notice of appeal, a simple form for which a model is provided as Official Form no. 1. A party other than the initial appellant may decide to appeal in light of the initial appellant's appeal and is therefore allowed additional time to do so after service of the first notice of appeal. The interest of parties in the security of judgments entered by the court requires that an appeal must be filed within the time prescribed or be forever waived. Calculation of time is prescribed by Sec. 1.21.170.

Proper methods of service are prescribed by Sec. 1.21.180.

1.21.100 How an Appeal May Be Taken

(a) A notice of appeal shall be filed by any party seeking review of a final judgment or order of the Tribal Court. The notice of appeal shall be filed and served, together with the request for transcript required by Section 1.21.100(c), within the time prescribed by Section 1.21.090 of this ordinance. The notice of appeal shall bear the caption and case number of the case in the Tribal Court and shall be labeled "Notice of Appeal." The notice of appeal shall identify by date, judge, and case number the judgment or order appealed, and shall state the substance of the judgment or order and whether the appellant appeals from the entirety of the judgment or order or from only part thereof, and if the latter, shall specify the part thereof. The notice of appeal shall also include a brief statement of the grounds for appeal and shall specify the precise relief sought. No appeal shall be dismissed for any formal defects in the notice of appeal as long as the matter appealed is clearly identified and filing and service are timely and properly made. If a notice of appeal does not contain every item required by this subsection, the Court of Appeals may make such orders as the interests of justice require.

(b) Unless waived, the filing fee prescribed by Section 1.21.190 shall be paid to the Clerk of the Tribal Court at the same time the notice of appeal is filed. The Clerk of Court shall not accept for filing a notice of appeal that is not accompanied by the filing fee or an order waiving fees. No filing fee shall be required in an appeal filed by the Tribe.

(c) A request for transcript shall be filed with the Clerk of the Tribal Court at the same time the notice of appeal is filed. The request for transcript shall specify those proceedings, or parts thereof, to which any reference will be made in the appeal proceedings and for which the official transcript will be required by the Court of Appeals for its review. Any other party may request transcription of additional proceedings or parts thereof by filing a request no later than 15 days after service of the appellant's notice of appeal and request for transcript. No fee shall be required for any transcript requested by the Tribe.

(d) The filing of an appeal does not constitute an automatic stay of the tribal court's judgment or order. A motion seeking a stay may be addressed to the tribal court before or after the filing of the notice of appeal.

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

Prior Codifications

§1.21.100 was formerly codified as 121.10

Commentary

The essence of the notice of appeal is to give fair notice to the other parties that what would otherwise be a final disposition of a case will not be final, and to allow the other parties to begin preparation for responding to the appeal or for filing a cross-appeal. The notice of appeal provided for in this section also requires a statement of the grounds for appeal and the relief sought, in the event an appellant appearing pro Se elects not to file a brief. Any party including in the notice of appeal the items listed in this subsection will be deemed to have clearly identified the matter appealed. A notice of appeal that fails to include all of the items listed in this subsection may cause the Court to expand the time for response, dismiss the appeal, or make other appropriate orders.

1.21.110 Clerical Functions upon Filing of Appeal

(a) Upon receipt of the notice of appeal, filing fee, and request for transcript, the Clerk of the Tribal Court shall forward to the Clerk of the Court of Appeals the notice of appeal and filing fee and shall prepare the record on appeal. The record on appeal shall consist of all papers filed by the parties or the court, and the transcript requested by appellant or any other party, unless limited by stipulation of the parties. Any party requesting a transcript may be charged the per page rate provided at Section 1.21.190.

(b) Upon receipt of the notice of appeal and the filing fee, the Clerk of the Court of Appeals shall docket the appeal and shall notify the judges of the Court of Appeals of the pending appeal.

(c) The Clerk of the Tribal Court shall file the completed record on appeal with the Clerk of the Court of Appeals, and shall serve notice thereof, together with a copy of any transcript included in the record, on each of the parties.

1.21.120 Briefing and Oral Argument

(a) If the appellant intends to submit a brief, he or she shall file and serve a brief within 45 days of the filing of the record on appeal.

(b) If the respondent intends to submit a brief, he or she shall file and serve a response brief within 30 days of service of appellant's brief, or within 75 days of the filing of the record on appeal, whichever occurs first.

(d) Briefs shall contain an argument and conclusion specifying the precise relief sought. The initial brief filed shall also include a statement of the case and statement of the issues presented on appeal and how the Tribal Court decided them.

(e) Briefs shall be typewritten, double-spaced, on white 8 x by 11 inch paper, and shall not exceed 50 pages in length, except that reply briefs shall not exceed 15 pages in length, exclusive of any table of contents and table of authorities included. The original and three copies of each brief shall be filed with the Clerk of the Court of Appeals.

(f) Oral argument may be permitted in the discretion of the Court. Whether argument is allowed, and if so the length of argument allowed, shall be set by the panel of the Court of Appeals hearing the appeal.

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

Prior Codifications

§1.21.120 was formerly codified as 121.12

Commentary

The above rules are considered the minimum necessary for allowing the Court of Appeals to conduct its business in an efficient and just fashion. Briefing rules are purposely looser than in other jurisdictions to allow non-lawyers to represent themselves, or if otherwise permitted by the rules of the Tribal Court (see sec. 1.21.200), to represent others. Briefs are made optional, in recognition that some parties appearing pro Se may not wish to file briefs but may rather wish to present their cases solely in oral argument. The notice of appeal (see Sec. 1.21.100(a)) accordingly requires a short statement of the grounds for appeal and of the relief sought. A party may or may not be disadvantaged by failure to file a brief.

1.21.130 Decisions

(a) All decisions of the Court of Appeals shall be in writing, shall specify the relief granted, if any, and the Court's rationale therefore. The Clerk of Court of Appeals shall, within two days of their filing, furnish copies of the decision and any order of the Court of Appeals to the Tribal Court, the parties, and, for publication and distribution, to the Indian Law Reporter and the Great Lakes Indian Fish and Wildlife Commission.

(b) All decisions and dissents shall be written by the most senior judge voting with the majority or dissent, unless assigned by that judge to another judge. Any judge dissenting or concurring shall file a written opinion, or join in a written opinion filed by another judge. The most senior judge is the judge having the longest term of continuous service as a judge at the time.

(c) A petition for reconsideration may be filed by an aggrieved party within 15 days of the filing of any decision or order of the Court of Appeals. The petition for reconsideration shall state the specific change in the decision sought, and all reasons, and the authority therefor, for the change. Any non-petitioning party shall have 15 days from the date of service of the petition to respond. Oral argument on a petition for reconsideration is discretionary with the Court.

(d) The Tribal Court shall in all respects be bound by the decisions and orders of the Court of Appeals.

(e) The Indian Law Reporter is designated the official reporter of the decisions of the Court of Appeals.

1.21.140 Standard of Review

The Court of Appeals shall apply the following standards of review.

(a) A finding of fact by a judge shall be sustained unless it is clearly erroneous.

(b) A finding of fact by a jury shall be sustained if there is any credible evidence to support it.

(c) A factual inference drawn by a judge or jury shall be reviewed as a finding of fact as long as more than one reasonable inference can be drawn from the facts.

(d) A finding, explicit or implicit, of witness credibility shall be reviewed as a finding of fact.

(e) Conclusions of law are review DE novo by the Court of Appeals.

(f) A stipulated, uncontested, or documentary fact is reviewed as conclusion of law.

(g) The meaning of an unambiguous contract is reviewed as a conclusion of law.

(h) A mixed issue of fact and law is reviewed according to the appropriate standard for each part.

(i) Whether a finding of fact or a conclusion of law has been properly labeled as such by the Tribal Court is reviewed as a conclusion of law.

(j) A discretionary determination shall be sustained if the record reflects that the Tribal Court exercised discretion and applied the appropriate legal standard to the admissible facts of record.

(k) Sentencing and the imposition of fines, forfeitures and other penalties or remedial measures, not including the assessment of damages, shall be reviewed as a discretionary determination.

(l) The Court of Appeals shall not substitute its judgment for that of the Tribal Court on a matter committed to the discretion of the Tribal Court.

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

Prior Codifications

§1.21.140 was formerly codified as 121.14

Commentary

The standard of review defines the relationship between the trial court and the appeals court. The standard of review seeks to allocate to each court that part of the judicial work which it can best do. The trial court is in the best position to weigh the evidence and assess witness credibility and is therefore sustained on such matters unless its findings are clearly erroneous. The trial court is in no better position to interpret the law than the appeals court; in fact, the appeals court has the luxury of being able to analyze the law away from the heat of trial and can better perform this task itself. The appeals court can therefore look at questions of law afresh and need not defer at all to the trial court. Discretionary questions by their nature, can result in different decisions when put to different decision makers. The function of the appeals court in reviewing a discretionary decision is not to itself decide the result it would choose, but to determine whether the trial court in fact exercised discretion and made a decision based on the applicable facts and law. The exercise of discretion is more than bald decision making and it is the task of the appeals court to see that the appropriate process was followed.

Specific instances of common standard of review problems are listed in this section; for instance the definition of sentencing as a discretionary determination. These instances are not exclusive. The Tribal Council may provide by ordinance and the courts by decision the classification of other matters as factual, legal, or discretionary.

1.21.150 Obligations of the Tribal Court

(a) In all matters tried to a judge without a jury, the judge shall make separate findings of fact and conclusions of law. It is sufficient if the findings and conclusions are made orally on the record in open court, or if they are contained in a written opinion.

(b) In all civil matters tried to a jury, the jury shall return a special verdict on each issue of fact placed before it.

(c) If the Tribal Court fails to make findings of fact, the Court of Appeals may affirm the judgment if the record supports it, reverse if the record does not support it, or remand for findings and conclusions.

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.

1.21.170 Time

(a) In computing any period of time prescribed or allowed by this ordinance or by order of the Court of Appeals, the day of the act, event, or default from which the period of time begins to run is not included. The last day of the period is computed unless it is a Saturday, Sunday, legal holiday, or day upon which the office of the Clerk of Tribal court is not open for business. When the period of time is less than 11 days, Saturdays, Sundays, legal holidays, or days upon which the office of the Clerk of Tribal Court is not open for business shall not be included in the period.

(b) Whenever a party has a right or is required to do some act within a prescribed period of time following service of a notice or paper on the party, and when that notice or paper is served by mail, 3 days shall be added to the prescribed period.

1.21.180 Service

(a) Any paper filed with the Clerk of Tribal Court or the Clerk of the Court of Appeals shall be served upon each other party. Filing constitutes the certification of the party or the party's attorney that service has been properly made.

(b) Service shall be made upon a party's attorney, if any, or if the party is not represented by counsel upon the party.

1.21.190 Fees

The Clerk of the Tribal Court shall collect the following fees:

(a) For filing of the notice of appeal, $25.00.

(b) For the preparation of a transcript, $2.50 per page, for the original, to be filed with the Court, and the first copy. Subsequent copies may be ordered for 50 cents per page.

(c) The Tribal Court may order the waiver of the fees provided for in this section, upon the filing of a sufficient affidavit of indigency.

1.21.200 Practice Before the Court of Appeals

Any individual authorized to practice before the Tribal Court shall be authorized to practice before the Court of Appeals.

1.21.210 Motions Before the Court of Appeals

Any party to an appeal may file such motions as appear necessary, together with supporting briefs and affidavits, as appropriate. Such motions shall be filed with the Clerk of the Court of Appeals. All motions before the Court of Appeals shall be placed on a briefing schedule by the chief judge, who may order oral argument at his or her discretion.

1.21.220 Frivolous Appeals

The Court of Appeals may in its discretion order a party, his or her attorney, or both, filing or pursuing a frivolous appeal, to pay the costs and reasonable attorney fees incurred by the other party or parties in responding to the appeal.

Chapter 1.22 Small Claims Procedure

1.22.010 Purpose

The purpose of this chapter is to establish simplified procedures for the resolution of disputes involving claims of $3,000.00 or less.

1.22.020 Authority

This chapter is adopted pursuant to Art. VI, sec. 1(q), of the Constitution of the Tribe.

1.22.030 Definitions

(a) "Clerk of Court" or "Clerk" means the Clerk of Tribal Court.

(b) "Tribal Court" means the court of the Tribe.

1.22.040 Relationship to Other Chapters

The procedures set forth in this chapter are the exclusive procedures for litigation of claims as described in Section 1.22.050. Chapter 1.21 (Appeals) shall apply to proceedings under this chapter. Chapter 1.37-156 (Evidence) shall only apply as provided in Section 1.22.090. All provisions of chapters 101-120 not inconsistent with this chapter shall apply to proceedings under this chapter.

1.22.050 Applicability of Chapter

(a) The procedures set forth in this chapter shall apply to all claims for $3,000.00 or less, or for property valued at $3,000.00 or less.

(b) If a counterclaim or cross complaint for more than $3,000.00 is filed which arises out of the same transaction or occurrence that is the subject of the original claim the entire action shall not proceed under this chapter but under chapters 101-120.

(c) If a counterclaim or cross complaint for more than $3,000.00 is filed which does not arise out the same transaction or occurrence that is the subject of the original claim the court shall dismiss without prejudice the counterclaim or cross complaint and the action shall proceed under this chapter.

(d) If a counterclaim or cross complaint for more than $3,000.00 is filed which the court, after hearing, finds may reasonably be valued at $3,000.00 or less, the action shall proceed under this chapter. Any finding made under this subparagraph shall not preclude a verdict on the merits of the counterclaim or cross complaint exceeding $3,000.00.

1.22.060 Starting an Action

(a) An action under this chapter is commenced by the filing of a summons and complaint as prescribed by this section.

(b) The summons and complaint shall be a single document setting forth the following:

(1) The names and addresses of the parties.

(2) The case number assigned by the Clerk of Court.

(3) A command to the defendant to appear at tribal court at a date, time and place specified.

(4) A brief statement, including approximate date and place, of the transaction or occurrence giving rise to the action.

(5) The relief requested.

(6) A statement that failure to appear may result in a judgment taken against defendant for the relief requested, plus costs and attorney fees.

(7) The dated signature of the Clerk of Court and of the plaintiff or plaintiff's attorney.

(8) The Clerk of Court shall make available forms of the summons and complaint.

(c) The return date specified under Section 1.22.060(b)(3) shall be no less than eight days and no more than 45 days from the date of issuance of the summons and complaint. Service, if by mail, shall be made no less than eight days prior to the return date. Service, if personal, shall be made no less than five days prior to the return date.

(d) The Clerk of Court may not accept for filing any summons and complaint that does not bear the dated signature of the plaintiff or plaintiff's attorney, or that is not accompanied by the filing fee and, if applicable, the mailing fee, as required by Section 1.22.120.

1.22.070 Service of the Summons and Complaint

Service of the summons and complaint may be by the following methods:

(a) Personal Service. The plaintiff may cause personal service to be made upon the defendant by hand delivery to the defendant in person or to any person of apparent normal understanding no less than 16 years old residing within the residence of the defendant. Any person over eighteen years of age, not a party to the action, may make personal service. In the case of personal service, an affidavit of service shall be returned to the Clerk of court and shall constitute proof of service.

(b) Service by Certified Mail. A plaintiff may request the Clerk of Court to make service by certified mail, in which case the Clerk of Court shall mail a copy of the summons and complaint to each defendant. Mail shall be certified, return receipt requested, return requested if not claimed within five days. The Clerk shall charge the plaintiff the fees provided by Section 1.22.120 for service by certified mail, receipt requested, return postage guaranteed. Service by mail shall be complete upon mailing unless the envelope enclosing the summons and complaint is returned unopened by the post office to the Clerk of Court prior to the return date.

(c) If service cannot reasonably be made under subparagraphs (a) or (b), service by publication pursuant to Section 1.11.030 may be made.

1.22.080 Answers, Counterclaims, and Cross-Complaints

(a) All parties shall appear on the return date specified in the summons and complaint. All answers, counterclaims and cross complaints may be made orally or in writing. If made in writing, any such pleading shall be filed with the Clerk of Court with copies served on all parties.

(b) Written pleadings shall not substitute for personal appearance or appearance by attorney on the return date. Failure of any party to appear may result in judgment as provided in Section 1.22.100.

(c) Upon the return date, the court shall determine whether the defendant wishes to make a defense to the complaint. If the defendant does not wish to make a defense or raise a counterclaim, judgment may be entered in favor of the plaintiff. If the defendant does wish to make a defense, the court shall determine whether the parties wish to settle their differences without trial. If such settlement is made, the court shall enter judgment, or dismiss the complaint, as called for by the settlement. If the parties do not make such settlement a trial date shall be set. Trial may be had on the returned ate if all parties and the court consent.

(d) Any party may request a substitution of judge for cause by making such request at the hearing on the return date.

(e) The court may in its discretion adjourn the return date as the interests of justice require.

1.22.090 Trial

(a) All trials under this chapter shall be to the court without a jury.

(b) A trial under this chapter shall be conducted informally, with each party being allowed to present evidence and argument and to examine witnesses to the extent reasonably required for full disclosure of the pertinent facts.

(c) Proceedings under this chapter shall not be governed by the rules of evidence except those related to privilege under Chapter 1.39. The court shall admit all evidence having reasonable probative value but may exclude irrelevant or repetitious evidence or argument. An essential finding of fact may not be based on oral hearsay unless it would be admissible under Chapter 1.42.

(d) The judge may questions witnesses.

(e) The judge shall establish the order of proof and argument consistent with the fair and prompt resolution of the dispute.

1.22.100 Judgment

(a) If plaintiff fails to appear on the return date or at trial, the court may dismiss the complaint. Dismissal shall be without prejudice unless a complaint filed by the plaintiff arising from the same transaction or occurrence has been dismissed on the same grounds once before.

(b) If the defendant fails to appear on the return date or at trial, the court may enter judgment for plaintiff upon due proof of facts which show the plaintiff is entitled to judgment.

(c) After trial, the court may give its decision orally immediately, or it may file written findings of fact, conclusions of law, and judgment, no later than 30 days following trial.

(d) Judgment may be reopened at any time within one year of judgment in any case where service was by mail or publication, the defendant did not receive actual notice of the action and did not appear in the action or otherwise submit to the jurisdiction of the court, and the defendant petitions the court to reopen the judgment within 15 days of receiving actual notice of the action or judgment. Such petition shall be verified and shall state the facts upon which the petitioner bases the claim the reopen under this subparagraph. After hearing, the court may grant the petition to reopen, in which case a trial date shall be set.

(e) Default judgment may be reopened on all grounds other than failure of actual notice, by petition for good cause shown within six months of entry of judgment.

(f) Judgment shall be entered by the Clerk within 20 days of the court's oral announcement or the court's filing of written findings, conclusions, and judgment. A notice of entry of judgment shall thereupon be prepared by the Clerk who shall mail a copy thereof to each party.

1.22.110 Disclosure of Assets

When a judgment for money damages is entered under this chapter, the court shall order that the judgment debtor execute, under penalty of contempt, within 15 days of the entry of judgment unless the judgment is satisfied sooner, a statement, on forms provided by the Clerk of Court, disclosing, as of the date of judgment, the debtor's name, residence address, employers and their addresses, frequency of pay periods and gross and net pay per period, any non-USA trust real property interests, cash on hand, financial institutions in which the debtor has any funds and the amount of funds in each institution, the names and addresses of all persons who hold any property belonging to the debtor or who owe any money or property to the debtor, and all items and property worth more than $100.00.

1.22.120 Fees

(a) Filing fee. For filing of a summons and complaint, the Clerk shall collect $10.00.

(b) Mailing fee. For service by mail the Clerk shall collect $3.00 plus the actual cost of certified mail, return receipt requested, return postage guaranteed, for each defendant to be so served.

(c) In actions filed by the Tribe, no fee shall be required under subparagraph (a) and only the actual cost of mailing shall be required under subparagraph (b).

(d) In actions filed by an indigent person, whose indigency is established by the filing of a verified petition, no fee shall be required under subparagraph (a) and only the actual cost of mailing shall be required under subparagraph (b).

1.22.130 Costs Recoverable

(a) The prevailing party in an action under this chapter may recover the following costs, which shall be added to the judgment.

(1) All fees paid under Section 1.22.120.

(2) Actual attorney fees not to exceed $150.00.

(3) Costs of Service.

(4) Witness fees and mileage.

(5) Post-judgment interest of 1«% per month.

(b) The prevailing party shall within ten days of the announcement of judgment file a certified statement of costs with the Clerk to be taxed to the other party. The other party shall have five days to object in writing to the taxation of the costs submitted. Any such conflict may be resolved by the court with or without hearing the court's discretion.

Chapter 1.23 Civil Remedial Forefeitures

Subchapter A Civil Remedial Money Penalties

1.23.010

Whenever any ordinance of the tribe shall provide for a civil remedial money penalty for the breach of such ordinance by any person, the tribe shall proceed against such person according to the procedure set forth in this subchapter. The provisions of the other chapters of the Tribal Court Code shall apply to proceedings instituted pursuant to this subchapter to the extent not inconsistent herewith. Unless an ordinance specified that a breach thereof shall subject the person breaching to a civil remedial money penalty. The other provisions of the Tribal Court Code shall apply.

1.23.020

Proceedings for the recovery of a civil remedial money penalty shall be instituted by the issuance of a citation by an enforcing officer. Whenever an enforcing officer has reasonable basis to believe that a person subject to tribal authority has committed a breach of a tribal ordinance which provides for a civil remedial money penalty, such officer shall issue a citation to such person, serve a copy of same as provided in Chapter 1.11 hereof, and file a copy with the tribal court. The issuance of a citation by an enforcing officer in connection with a breach of an ordinance is adequate process to give the tribal court jurisdiction over the person upon the filing with the court of such citation.

1.23.030

The citation shall contain a complaint, a case history, and a report of court action on the case. It must appear on the face of the citation that there is a reasonable basis to believe that a breach of an ordinance has been committed. The citation form shall provide the following:

(a) The name of the person to whom the citation was issued, together with the person's age and address, if available;

(b) The tribal permit or license number of the defendant, if applicable;

(c) The breach alleged, the time and place of occurrence, a statement that the defendant committed the breach, the ordinance provision charged, and a description of the breach in language which can be readily understood;

(d) The name and tribal department of the issuing officer;

(e) The maximum civil remedial money penalty for which the defendant might be found liable;

(f) A date, time and place for the tribal court appearance, and a notice to appear;

(g) Provision for a deposit and stipulation or default in lieu of court appearance;

(h) Notice that if the defendant fails to appear at the time fixed in the citation, the defendant will be defaulted and judgment entered against him in an amount up to the maximum penalty;

(i) Notice that if the defendant makes a deposit and stipulation of default, judgment will be entered against him in the amount of the deposit;

(j) Any other information.

1.23.040

A defendant to whom a citation is issued may make a deposit and stipulation of default in lieu of a court appearance at any time prior to the court appearance date. The amount of the deposit shall be determined by an enforcing officer, up to the maximum penalty set in the ordinance charged. By signing the stipulation, the defendant consents to the entry of judgment against him for a penalty not to exceed the amount of the deposit. The person accepting the deposit and stipulation of default shall prepare a receipt showing the purpose for which the deposit was made and shall file the deposit and stipulation of default, together with a copy of the receipt, with the tribal court.

1.23.050

Upon return of the citation, the defendant shall enter a plea. If the defendant denies the allegations of the complaint a date for trial shall be set.

1.23.060

In all actions under this subchapter, the tribe shall have the burden of showing by a preponderance of the evidence that defendant breached the ordinance charged in the citation. The tribe shall not, however, be required to show that defendant intended to breach the ordinance charged.

1.23.070

If the defendant is found to have breached the ordinance charged, the tribal court shall enter judgment against the defendant and in favor of the tribe for a monetary amount not to exceed the maximum civil remedial money penalty provided for the breach, together with court costs, or in cases where a deposit and stipulation of default has been made by the defendant, for an amount up to the amount of the deposit. If the judgment is for an amount of the deposit, the balance shall be returned to the defendant.

1.23.080

All civil remedies are available in order to enforce the judgment of the tribal court, including the power of civil contempt. A judgment shall become a lien upon any available property of the defendant located within the Bad River Reservation or within the jurisdiction of the tribal court. When necessary, the tribe may bring suit in any court on the judgment against the defendant or property of the defendant located beyond the jurisdiction of the tribal court.

1.23.090

Deposits and money paid on judgments rendered pursuant to this subchapter shall be tendered to the tribal Clerk of court. Within 20 days after judgment on a deposit or receipt of funds in payment of a judgment the tribal Clerk of Court shall tender such sums to the tribal treasurer, who shall place such sums in the general account of the tribe such disposition as the Tribal Council shall make.

Subchapter B Civil Remedial Forfeiture of Property

1.23.100

Whenever any ordinance of the tribe shall provide for the civil remedial forfeiture of any property for breach of such ordinance by any person, the tribe shall proceed against the property according to the procedures set forth in this subchapter. The provisions of other chapters of the Tribal Court Code shall apply to proceedings instituted pursuant to this subchapter to the extent not inconsistent herewith.

1.23.110

Proceedings for civil remedial forfeiture of property shall be instituted by the filing of a complaint in rem against the property in tribal court by an enforcing officer. A complaint shall be filed whenever an enforcing officer has a reasonable basis to believe that a tribal ordinance has been breached and the property is forfeitable under the tribal ordinance.

1.23.120

It must appear on the face of the complaint that there is a reasonable basis to believe that a tribal ordinance has been breached and the property is forfeitable under that ordinance. The complaint shall contain:

(a) A description of the property against which proceedings are instituted;

(b) The ordinance provision allegedly breached;

(d) The name, address and other pertinent information about the owner of the property, if known, or a statement that the owner of the property is unknown;

(e) A request for an order to seize the property; and

(f) The name and attestation of the complaining enforcing officer.

1.23.130

If the owner of the property is known, the summons, complaint and notice of hearing on an order to seize shall be served on the owner as provided in Chapter 1.11 hereof. If the owner of the property is unknown or cannot be located, service shall be made by posting in the central tribal office and the Tribal Rights Protection office and by publication once in a newspaper of general circulation in Ashland County. An affidavit of publication and posting shall be filed with the tribal court.

1.23.140

All property alleged to be subject to civil remedial forfeiture may be seized pursuant to an order to seize issued by the tribal court and held by the tribal court pending disposition of the complaint or until a bond has been posted with the tribal court. Property may be seized by an enforcing officer prior to filing a complaint and issuance of an order to seize if:

(a) A tribal ordinance authorizes the immediate seizure of the property; or

(b) The property seized presents a danger to persons, property or a natural resource of the Bad River Reservation; or

(c) An enforcing officer has a reasonable basis to believe that without immediate seizure the property will be removed from the jurisdiction of the tribe.

A receipt describing the property at the time of seizure, if such person is present.

1.23.150

The hearing on the order to seize shall be heard within 30 days of the filing of the complaint. The tribe shall use its best efforts to attempt to provide actual notice of the hearing to the owner of the property.

1.23.160

At the hearing on the order to seize the tribe shall have the burden of showing that there is a reasonable basis to believe that the property is subject to civil remedial forfeiture under the tribal ordinance alleged and that the property is within the jurisdiction of the tribal court. The tribe may present evidence by testimony or affidavit. Any person alleging ownership of the property may appear and present argument and evidence by testimony or affidavit.

1.23.170

If after hearing the tribal court finds that there is a reasonable basis to believe that the property is subject to civil remedial forfeiture under the tribal ordinance alleged and that the property is within the jurisdiction of the court, it shall issue an order to seize directing the enforcing officer to seize the property and hold it pending disposition of the complaint. If the tribal court finds to the contrary, it shall dismiss the complaint and, if property was seized prior to the hearing, order the property released immediately.

1.23.180

An order to seize shall contain the following:

(a) A description of the property subject to the order;

(b) The date of filing of a property complaint for the forfeiture and the name and department of the complaining officer;

(d) A finding that there is a reasonable basis to believe that the property is subject to a civil remedial forfeiture, a brief factual narration of the ground for finding, and citation to the ordinance allegedly breached;

(e) Notice of the date and place of trial;

(f) Notice that the property may be released by the posting of a property bond.

The order to seize shall be served as provided in Section 123B.4.

1.23.190

The enforcing officer shall make a reasonable effort prior to the hearing on the order to seize to ascertain whether a perfected security interest exists in the property, and if one exists shall give notice to the secured party of any hearing in the case and shall also give the secured party at least 15 days notice of the time and place of any sale conducted pursuant to Section 123B.13.

1.23.200

The person determined by the tribal court to be the lawful owner of the property seized may be allowed to post a bond in the amount of the value of the seized property as determined by the tribal court. When a proper bond has been posted with the court, the property shall be returned to the owner. The bond shall be available to be levied against if the owner does not return the property to the custody of the tribal court in proper condition or if the court determines after trial that the property should be forfeited.

1.23.210

At trial the tribe shall have the burden of showing by a preponderance of the evidence that the property is forfeitable under the ordinance charged. If the tribe fails to meet this burden, the tribal court shall dissolve the order to seize, enter judgment awarding title to the property to the owner, and order the immediate release of the property or discharge of the bond. If the tribe meets its burden, the court shall dissolve the order to seize, enter judgment awarding title to the property to the tribe, together with court costs, and place the property in the hands of the tribe for disposition or, if bond was posted, order the bond forfeited to the tribe.

1.23.220

Within 30 days after entry of a judgment forfeiting property to the tribe, the tribe shall sell the property at the highest obtainable price. The net proceeds of such sale, shall be remitted to the tribal treasurer, who shall place such sums in the general account of the tribe for such disposition as the Tribal Council shall make. If there is a perfected security interest in the property forfeited, and the breach which occasioned the forfeiture was not committed with the knowledge, consent, or connivance of the secured party, but if a sufficient amount does not remain for such purpose after the other deductions, then the amount remaining shall be paid over.

1.23.230

Any perishable property seized pursuant to this subchapter may be sold by an enforcing officer at the highest available price and the proceeds of the sale shall be tendered into tribal court to await such disposition of the proceeds as the tribal court shall direct.

Subchapter C Miscellaneous Provisions

1.23.240

No person in a suit brought pursuant to this chapter shall be required to answer questions which would tend to show that such person breached the ordinance under which the suit was brought.

1.23.250

Any person who is concerned in the commission of a breach remediable under this chapter is a principal and may be adjudged to have committed the breach although such person did not directly commit it and although the person who did directly do so has not been subject to the remedial provisions of this chapter. A person is concerned in the commission of a breach if such person:

(a) Directly commits the breach;

(b) Aids and abets the commission of the breach; or

(c) Is party to a conspiracy with one or more others to commit the breach or advises, hires, counsels, or otherwise procures another to commit the breach.

1.23.260

The civil remedial forfeiture remedies governed by this chapter are not mutually exclusive, nor shall they be the sole and exclusive remedies of the tribe for breach of its ordinances. Nothing in this chapter shall restrict or curtail the right of the tribe to prosecute or seek the criminal prosecution of any defendant or owner or to institute a civil action for damages in any court against a defendant or owner. In addition to the civil remedies provided in this chapter, the tribal court may order a defendant or owner to perform or refrain from performing such acts as may be necessary fully to protect the tribe, its members, its property, or its natural resources. The tribal court may order abatement of a nuisance, restoration of natural resource, or other appropriate action designed to eliminate or minimize damage caused by a defendant or owner. The tribal court may, where provided by ordinance, revoke or suspend any or all tribal permits, licenses or privileges.

(a) Except as specifically provided in this section, a civil remedial forfeiture not to exceed $1,000 may be assessed against any person for breach of any provision of this chapter.

(b) Except as specifically provided in this section, a civil remedial forfeiture not to exceed $2,000 may be assessed against any person for a breach of any provision of this chapter, who has been found to have breached the same provision at least once before in the five years proceeding the violation.

(c) In addition to any other penalty herein, the Court may order a suspension or revocation of any or all hunting, fishing and gathering rights.

Chapter 1.24 Landlord - Tenant Relations

1.24.010 Purpose

The purpose of this chapter is to define the rights of landlords and tenants and to establish procedures for the enforcement of landlord and tenant rights and obligations.

1.24.020 - Authority

This chapter is adopted pursuant to Art. VI, Sec. 1(q) of the Tribe's constitution.

1.24.030 Definitions

(a) "Lease" means an agreement, whether oral or written, for transfer of possession of real property, or both real and personal property, for a definite period of time. A lease is for a definite period of time if it has a fixed commencement date and a fixed expiration date or if the commencement and expiration can be ascertained by reference to some event such as completion of a building. An agreement for transfer of possession of only personal property is not a lease.

(b) "Periodic tenant" means a tenant who holds possession without a valid lease and pays rent on a periodic basis. It includes a day-to-day, week-to-week, month-to-month, year-to- year or other recurring interval of time, the period being determined by the intent of the parties under the circumstances, with the interval between rent-paying dates normally evidencing that intent.

(c) "Premises" mean the property covered by the lease, including not only the realty and fixtures, but also any personal property furnished with the realty.

(d) "Tenancy" includes a tenancy under a lease, a periodic tenancy or a tenancy at will.

(e) "Tenant at will" means any tenant holding the permission of his landlord without a valid lease and under circumstances not involving periodic payment of rent; but a person holding possession of real property under a contract of purchase or an employment contract is not a tenant under this chapter.

(f) "Tribal Court" means the Tribe's Tribal Court.

(g) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

1.24.040 Relationship to Other Laws

This chapter provides minimum rights, obligations, remedies, and procedures. Other rights, obligations, remedies and procedures may be provided by oral or written agreement of parties, or by applicable federal law. Proceedings under this chapter shall not be governed by Chapters 150 - 156 (Evidence) except as provided by Section 1.22.090.

1.24.050 Requirement of Writing for Rental Agreements and Termination

(a) A lease for more than a year, or a contract to make such a lease or the assignment of any leasehold interest of more than a year, is not enforceable unless it is in writing and in addition sets forth the amount of rent or other consideration, the time of commencement and expiration of the lease and a reasonably definite description of the premises, or unless a writing signed by the landlord and the tenant sets forth the amount of rent or other consideration, the duration of the lease and a reasonably definite description of the premises and the commencement date is established by entry of the tenant into possession under the writing. Sections 124.6 and 124.8 govern as to matters within the scope of such sections and not provided for in such written lease or contract.

(b) Possession under unenforceable lease. If a tenant enters into possession under a lease for more than one year which does not meet the requirements of sub. (a), and the tenant pays rent on a periodic basis, he becomes a periodic tenant. Except for duration of the tenancy and matters within the scope of Section 1.24.060 and 124.8, the tenancy is governed by the terms and conditions agreed upon.

(c) Termination of written lease prior to normal expiration date. An agreement to terminate a tenancy more than one year prior to the expiration date specified in a valid written lease is not enforceable unless it is in writing signed by both parties. Any other agreement between the landlord and tenant to terminate a lease prior to its normal expiration date or to termination a periodic tenancy or tenancy at will without the notice required by Section 1.24.120 may be either oral or written. Nothing herein prevents surrender by operation of law.

(d) Proof. In any case where a lease or agreement is not in writing signed by both parties but is enforceable under this section, the lease or agreement must be proved by clear and convincing evidence.

1.24.060 Rights and Duties of Landlord and Tenant in Absence of Written Agreement to Contrary

(a) When section applicable. So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant. This section applies to any tenancy.

(b) Possession of tenant and access by landlord. Until the expiration date specified in the lease, or the termination of a periodic tenancy or tenancy at will, and so long as the tenant is not default, the tenant has the right to exclusive possession of the premises, except as hereafter provided. The landlord may upon advance notice and at reasonable times inspect the premises, make repairs and show the premises to prospective tenants or purchasers; and if the tenant is absent from the premises and the landlord reasonably believes that the entry is necessary to preserve or protect the premises, the landlord may enter without notice and with such force as appears necessary.

(c) Use of premises, additions or alterations by tenant. The tenant can make no physical changes in the nature of the premises, including decorating, removing, altering or adding to the structures thereon, without prior consent of the landlord. The tenant cannot use the premises for any unlawful purpose nor in such a manner as to interfere unreasonably with use by another occupant of the same building or group of buildings.

(d) Tenant's Fixtures. At the termination of the tenancy, the tenant may remove any fixtures installed by him if he either restores the premises to their condition prior to the installation or pays to the landlord the cost of such restoration. Where such fixtures were installed to replace similar fixtures which were part of the premises at the time of the commencement of the tenancy, and the original fixtures cannot be restored the tenant may remove fixtures installed by him only if he replaces them with fixtures at least comparable in condition and value to the original fixtures. The tenant's right to remove fixtures is not lost by an extension or renewal of a lease without reservation of such right to remove. This subsection applies to any fixtures added by the tenant for his convenience as well as those added for purposes of trade, agriculture or business; but this subsection does not govern the rights of parties other than the landlord and tenant.

(e) Storage or disposition of personalty left by tenant.

(1) If a tenant removes from the premises and leaves personal property of an apparent total value of less than $100, the landlord may:

(A) Store such personalty, with or without notice to the tenant, on or off the premises, with a lien on the personalty for actual cost of removal and storage or, if stored by the landlord, for the reasonable value of storage;

(B) Give the tenant notice, personally or by ordinary mail addressed to the tenant at his last-known address, of the landlord's intent to dispose of the personalty by sale or other appropriate means if the property is not repossessed by the tenant within 5 days of such personal service or 8 days of the date of mailing. If the tenant fails to repossess within the time specified, the landlord may proceed to dispose of such property by private or public sale or any other appropriate means. The landlord may deduct from the proceeds of sale any costs of sale and any storage charges if he has first stored the personalty under sub d. A, and send the balance of the proceeds to the tenant by registered mail addressed to his last known address; if such proceeds are returned to the landlord and are not claimed within five months after the date on which they were mailed, the proceeds shall belong to the landlord.

(2) Rights of third persons. The landlord's lien and power to dispose as provided by this subsection apply to any property left on the premises by the tenant, whether owned by him or by others. Such lien has priority over any ownership or security interest and the power to dispose under this subsection applies notwithstanding rights of others existing under any claim of ownership or security interest. Notice of intended disposition need to be given only to the tenant. The tenant or any secured party shall have the right to redeem the property at any time before the landlord has disposed of it or entered into a contract for its disposition by payment of the landlord's charges for removal, storage, disposition, arranging for the sale and reasonable attorney's fees and legal expenses.

(3) Other procedure. The remedies of this subsection are not exclusive and shall not prevent the landlord from resorting to any other available judicial procedure.

1.24.070 Water Heater Thermostat Settings

A landlord of premises which are subject to a residential tenancy and served by water heater serving only that premises shall set the thermostat of that water heater at no higher than 125 degrees Fahrenheit before any new tenant occupies that premises or at the minimum setting of that water heater if the minimum setting is higher than 125 degrees Fahrenheit.

1.24.080 Repairs, Untenantability

(a) Application of section. This section applies only to residential tenancies. An agreement to waive the requirements of this section is void. Nothing in this section is intended to affect rights and duties arising under other law.

(b) Duty of Landlord.

(1) Unless the repair was made necessary by the negligence or improper use of the premises by the tenant, the landlord is under a duty to:

(A) Keep in a reasonable state of repair portions of the premises over which he maintains control;

(B) Keep in a reasonable state of repair all equipment under his control necessary to supply services which he has expressly or implied agreed to furnish to the tenant, such as heat, water, elevator or air-conditioning.

(D) Repair or replace any plumbing, electrical wiring, machinery or equipment furnished with the premises and no longer in reasonable working condition, except as provided in sub. (c)(2).

(E) Comply with applicable housing code.

(2) If the premises are part of a building, other parts of which are occupied by one or more other tenants, negligence or improper use by one tenant does not relieve the landlord from his duty as to the other tenants to make repairs as provided in par. (1).

(3) If the premises are damaged by fire, water or other casualty, not the result of the negligence or intentional act of the landlord, this subsection is inapplicable and either sub. (2) or (d) governs.

(1) If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.

(2) The tenant is also under a duty to keep plumbing, electrical wiring, machinery and equipment furnished with the premises in reasonable working order if repair can be made at cost which is minor in relation to the rent.

(3) A tenant shall comply with an applicable housing code.

(d) Untenantability.

If the premises becomes untenantable because of damage by fire, water or other casualty or because of any condition hazardous to health, or if there is a substantial violation of sub. (b) materially affecting the health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of sub. (b) materially affecting the health or safety of the tenant; or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on him. If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.

1.24.090 Transferability; Assignment of Interest

(a) Unless specifically permitted by a written lease, no interest in any tenancy may be transferred or assigned by any tenant to any one else, unless the landlord specifically consents.

(b) Effect of transfer on liability or transferor. In the absence of an express release or a contrary provision in the lease, transfer or consent to transfer does not relieve the transferring party of his contractual obligations under the lease, except in the special situation governed by Section. 124.16(e).

(c) Covenants Which Apply to Transferee. All covenants and provisions in a lease which are not either expressly or by necessary implication personal to the original parties are enforceable by or against the successors in interest of any party to the lease. However, a successor in interest is liable in damages, or entitled to recover damages, only for a breach which occurs during the period when such successor holds his interest, unless he has by contract assumed greater liability; a personal representative may also recover damages for a breach for which his decedent could have recovered.

(d) Same Procedural Remedies. The remedies available between the original landlord and tenant are also available to or against any successor in interest to either party.

(e) Consent as Affecting Subsequent Transfers. If a lease restricts transfer, consent to a transfer or waiver of a breach of the restriction is not a consent or waiver as to any subsequent transfers.

1.24.100 Lien of Landlord

If any tenant abandons a premises while owing rent or other sums to the landlord, the landlord may seize any personalty left on the premises by the tenant and sell it, publicly or privately, and may retain such of the proceeds as are necessary to offset the sum due. The landlord shall send an overage by registered mail to the last known address of the tenant; if such proceeds are returned to the landlord and are not claimed within five months after the date on which they were mailed, the proceeds shall belong to the landlord.

1.24.110 Requirement That Landlord Notify Tenant of Automatic Renewal Clause

A provision in a lease of residential property that the lease shall be automatically renewed or extended for a specified period unless the tenant or either party gives notice to the contrary prior to the end of the lease is not enforceable against the tenant unless the lessor, at least 15 days more than 30 days prior to the time specified for the giving of such notice to him, gives to the tenant written notice in the same manner as specified in Section 1.24.150 calling the attention of the tenant to the existence of the provision in the lease for automatic renewal or extension.

1.24.120 Notice Terminating Tenancy, No Fault by Either Party

(a) Unless otherwise provided by written agreement of the parties, notice terminating tenancy by either the landlord or the tenant, where no fault by the recipient of the notice is alleged, shall be given as provided by this section.

(b) A tenancy at will may be terminated by notice, terminating the tenancy 28 days after the date of notice.

(1) If notice is given on the first day of a period, then the tenancy is terminated as of the last of a period, then the tenancy is terminated as of the last day of the same period.

(2) If notice is given on any day other than the first day of a period, then the tenancy is terminated as of the last day of the period immediately following the period in which notice is given.

(d) A lease that does not include an oral or written agreement as to notice terminating tenancy may be terminated by notice within an effective date of termination to be determined as follows:

(1) If notice is given on a date rent is due, then the tenancy is terminated 28 days after the date of notice.

(2) If notice given on any day other than a date rent is due, then the tenancy is terminated 28 days after the next date rent is due.

(e) If the periodicity of a tenancy, or the due date of rent, cannot be determined, tenancy may be terminated by notice terminating the tenancy 28 days after the date of notice.

(f) In calculating the number of days notice, the day on which notice is given shall not be counted. All subsequent days, including weekends and holidays, shall be counted.

(g) Notice is considered given on the date specified in Section 1.24.130.

1.24.130 Notice Terminating Tenancy for Failure to Pay Rent or Other Breach by Tenant

(a) Failure to pay rent.

(1) Periodic tenancies of a period of one year or less; leases for one year less.

(A) If a tenant has failed to pay rent under a periodic tenancy of a week to week, month-to-month, or other period less than and including year-to-year, the landlord may terminate the tenancy if the landlord gives the tenant notice that tenant must pay rent or vacate the premises within ten days of the date of the notice, and if the tenant fails to pay accordingly.

(B) If notice has been given by a landlord to a tenant under sub. (A), above, and tenant has paid rent or otherwise been permitted to remain in possession on the premises, and within one year of the notice again is in default on rent, the landlord may terminate the tenancy by giving tenant notice that tenant must vacate the premises within 14 days of the date of the notice.

(2) Leases for more than a year. If a tenant has failed to pay rent under a lease of more than a year, a landlord may terminate the tenancy as provided in, sub. (1), above, except that the time given to vacate the premises or pay rent under sub. (1)(A) and the time given to vacate under sub. (1)(B) shall be 30 days from the date notice is given.

(b) Default other than failure to pay rent.

(1) Periodic tenancies of a period of one year or less; leases for one year or less.

(A) If a tenant commits waste or a material violation of Section 1.24.080(c) or breaches any covenant or condition of the rental agreement (other than for the payment of rent), the landlord may terminate the tenancy if the landlord gives the tenant notice that the tenant must remedy the breach or vacate the premises within ten days of the notice, and if the tenant fails to remedy the breach.

(B) A tenant is deemed to be complying with a notice under sub. (A), above if promptly upon receipt of such notice he takes reasonable steps to remedy the default and proceeds with reasonable diligence, or if damages are adequate protection for the landlord and the tenant makes a bonafide and reasonable offer to pay the landlord all damages for his breach.

(C) If within one year from the giving of notice under sub. (A), above, the tenant again commits waste or breaches the same or any other covenant or condition of his lease (other than for payment of rent), his tenancy is terminated if the landlord, prior to the tenant's remedying the waste or breach, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.

(2) Leases for more than a year. If a tenant commits waste, or a material violation of Section 1.24.080(c), or breaches any covenant or condition of the rental agreement (other than for the payment of rent) the landlord may terminate the tenancy as provided in sub. (1), above, except that the time given to remedy the breach or vacate under sub. (1)(A), and the time given to vacate under sub. (1)(C), shall be 30 days.

1.24.140 Removal of Tenant on Termination of Tenancy

If a tenant remains in possession without consent of the landlord after termination of his tenancy, the landlord may in every case proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.

1.24.150 Manner of Giving Notice

(a) Notice must be in writing, formal or informal, and substantially inform the other party to the landlord-tenant relation of the intent to terminate the tenancy and the date of termination. A notice is not invalid because of errors in the notice which do not mislead, including omission of the name of one of several landlords or tenants.

(b) Notice terminating a tenancy may be given in any of the following manners.

(1) By giving a copy of the notice personally to the other party, or by leaving a copy at the party's usual place of abode in the presence of some competent member of the family at least 14 years of age, who is informed of the contents of the notice. Notice is given under this subsection on the day the notice is given or left.

(2) By leaving a copy with any competent person apparently in charge of or occupying the tenants rented premises, or the landlord's place of business, and by mailing a copy to the party at the party's last known address. Notice is given under this subsection on the day the notice is given or left.

(3) By mailing a copy the registered or certified mail to the party's last known address. Notice is given under this subsection 3 days after it is mailed.

(c) Any notice to a landlord may be given to the landlord or to a person who has been managing the property or receiving rent as the landlord's agent.

(d) Any notice to a corporation, partnership, or other business association, may be given to any corporate director, general partner, manager, or agent who has made or received rental payments on behalf of the party.

(e) If notice is not properly given under this section but is actually received by the other party, the notice is deemed to be properly given, but the burden is on the party alleging actual receipt to prove that fact by clear and convincing evidence. Notice is given under this subsection on the day it is actually received.

(f) If a tenant vacates the premises without giving notice to the landlord, notice is deemed to have been given to the landlord as of the date of the tenant's vacation of the premises or, if such date cannot be ascertained, the date landlord had actual notice of the vacation.

1.24.160 Effect of Holding over After Expiration of Lease; Removal of Tenant

(a) Removal and recovery of damages.

If a tenant holds over after expiration of a lease, the landlord may in every proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.

(b) Creation of periodic tenancy by holding over.

(1) Nonresidential leases for a year or longer. If premises leased for a year or longer primarily for other than private residential purposes, and the tenant hold over after expiration of the lease, the landlord may elect to hold the tenant on a month-to-month basis; but if such lease provides for a weekly or daily rent, the landlord may hold the tenant only on the periodic basis on which rent is computed.

(2) All other leases.

If premises are leased for less than a year for any use, or if leased for any period primarily for private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a month-to-month basis; but if such lease provides for a weekly or daily rent, the landlord may hold the tenant only on the periodic basis on which rent is computed.

(3) When election takes place.

Acceptance of rent for any period after expiration of a lease, the landlord may elect to hold the tenant on a month-to-month basis; but if such lease provides for a weekly or daily rent, the landlord may hold the tenant for a weekly or daily rent, the landlord may hold the tenant only on the periodic basis on which rent is computed.

A periodic tenancy arising under this section is upon the same terms and conditions as those of the original lease except that any right of the tenant to renew or extend the lease, or to purchase the premises, or any restriction on the power of the landlord to sell without first offering to sell the premises to the tenant, does not carry over to such a tenancy.

(d) Effect of contrary agreement.

This section governs except as the parties agree otherwise either by the terms of the lease itself or by an agreement at any subsequent time.

(e) Holdover by assignee or subtenant.

If an assignee or subtenant holds over after the expiration of the lease, the landlord may either elect to:

(1) Hold the assignee or subtenant or, if he or she participated in the holding over, the original tenant as a periodic tenant under sub. (b); or

(2) Remove any person in possession and recover damages from the assignee or subtenant or, if the landlord has not been accepting rent directly from the assignee or subtenant, from the original tenant.

(f) Notice terminating a tenancy created by holding over.

Any tenancy created pursuant to this section is terminable under Section. 124.12.

1.24.170 Damages for Failure of Tenant to Vacate at End of Lease or After Notice

If a tenant remains in possession without consent of his landlord after expiration of a lease or termination of a tenancy by notice given either landlord or the tenant, or after termination by valid agreement of the parties, the landlord may recover from the tenant damages suffered by the landlord because of the failure of the tenant to vacate within the time required. In absence of proof of greater damages, the landlord may recover as minimum damages twice the rental value apportioned on a daily basis for the time the tenant remains in possession. As used in this section, rental value means the amount for which the premises might reasonably have been rented, but not less than the amount actually paid or payable by the tenant for the prior rental period, and includes the money equivalent of any obligations undertaken by the tenant as part of the rental agreement, such as payment of taxes, insurance and repairs.

1.24.180 Recovery of Rent and Damages by Landlord; Mitigation

(a) Scope of section. If a tenant unjustifiably removes from the premises prior to the effective date for termination of his tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which he could mitigate in accordance with this section, unless he has expressly agreed to accept a surrender of the premises and end the tenant's liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.

(b) Measure of recovery. In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to re- rent the premises. Reasonable efforts mean those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that such steps are in accordance with local rental practice for similar properties. In the absence of proof that greater net rent is obtainable by reasonable efforts to re-rent the premises, the tenant is credited with rent actually received under a re-rental agreement minus expenses incurred as a reasonable incident of acts under sub. (d), including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent other elements of damage, all reasonable expenses of listing and advertising incurred in re-renting and attempting to re-rent (except as taken into account in computing the net rent under preceding sentence). If the landlord has used the premises as part of reasonable efforts to re-rent, under sub.(4)(c), the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for his own account in preference to those vacated by the defaulting tenant.

(c) Burden of proof. The landlord must allege and prove that he has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord's refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact re-rented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with sub. (d)(3); the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.

(d) Acts privileged in mitigation of rent or damages. The following acts by the landlord do not defeat his right to recover rent and damages and do not constitute an acceptance of surrender of the premises:

(1) Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;

(2) Re-renting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;

(3) Use of the premises by the landlord until such time as re-renting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that he will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period; (4) Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.

1.24.190 Retaliatory Conduct in Residential Tenancies Prohibited

(a) Except as provided in sub. (b), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:

(1) Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.

(2) Complaining to the landlord about a violation of Section 1.24.080 or a local housing code applicable to the premises.

(3) Exercising a legal right relating to residential tenancies.

(b) Notwithstanding sub. (a), a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by sub. (a).

(c) This section does not apply to complaints made about defects in the premises caused by the negligence or improper use of the tenant who is affected by the action or inaction.

1.24.200 Eviction Actions - Commencement

(a) An eviction action is commenced by the filing of a summons and complaint. The summons and complaint shall conform to the requirements of Section 1.22.060. In addition to the requirements of Section 1.22.060, the complaint shall allege the type of tenancy to be terminated, the breach, and the date of notice to vacate given by the landlord. The landlord may join in the eviction action other claims arising out of the tenancy. If the landlord joins a claim for lost rent, the landlord must allege that an attempt at mitigation was undertaken.

(b) The Clerk of Court shall make available forms of the summons and complaint.

1.24.210 Service of Summons and Complaint

(a) Service shall be made upon defendant pursuant to Section 1.22.070.

(b) When the defendant has been served pursuant to Section 1.22.070 and does not waive lack of personal jurisdiction as a defense, service may be made as follows:

(1) If the summons is returned more than 7 days prior to the return date with proof that the defendant cannot be served under Section 1.22.070(a), the plaintiff may, at least 7 days prior to the return date, affix a copy of the summons and complaint onto some part of the premises where it may be conveniently read. At least 5 days prior to the return date an additional copy of the summons and complaint shall also be mailed to the defendant at the last-known address, even if it is the premises which are the subject of the action.

(2) In all other cases where the summons and complaint are returned with proof that the defendant cannot be served under Section 1.22.070, the court shall, on the return date, adjourn the case to a day certain not less than 7 days from the return date, and the plaintiff shall affix a notice in substantial conformity with sub. (c) onto some part of the premises where it may be conveniently read. At least 5 days prior to the return date, an additional copy of said notice, together with a copy of the summons and complaint, shall be mailed to the defendant at the last- known address, even if it is the premises which are the subject of the action.

(3) Before judgment is entered after service is made under this section, the plaintiff shall file proof of compliance with this section.

BAD RIVER TRIBAL COURT

Case No.

Take notice that an eviction action has been commenced against you to recover the possession of the following described premises......, of which, I the plaintiff, am entitled to possession, but which you have unlawfully detained from me.

Unless you appear and defend on the day of , , at o'clock . m., in the Bad River Tribal Court, located at the Tribal Administration Building (Chief Blackbird Center), Odanah, WI judgment may be rendered against you for the restitution of said premises and for costs.

DATED: ,

Plaintiff or Plaintiff's Attorney

1.24.220 Answers, Counterclaims, and Cross-Complaints

All pleadings in response to the summons and complaint shall be made as provided in Section 1.22.080.

1.24.230 Trial

Trials under this chapter shall be conducted as provided in Section 1.22.090.

1.24.240 Judgment; Writ of Restitution

(a) Judgment. If the court finds that the plaintiff is entitled to possession of the premises, the order for judgment shall be for the restitution of the premises to the plaintiff and if an additional cause of action is joined under Section 1.24.200 and plaintiff prevails thereon, for such other relief as the court orders. Judgment shall be entered accordingly as provided in Section 1.22.100.

(b) Writ of restitution. At the time of ordering judgment for the restitution of premises, the court shall order that a writ of restitution be issued, and the writ may be delivered to any general law enforcement officer or other officer specifically empowered to carry out such writ.

(c) Stay of writ of restitution. At the time of ordering judgment, upon application of the defendant with notice to the plaintiff, the court may in cases where it determines hardship to exist, stay the issuance of the writ by a period not to exceed 30 days from the date of the order for judgment. Any such stay shall be conditioned upon the defendant paying all rent or other charges due and unpaid at the entry of judgment and upon the defendant paying the reasonable value of the occupancy of the premises, including reasonable charges, during the period of the stay upon such terms and at such times as the court directs. The court may further require the defendant, as a condition of such stay, to give a bond in such amount and with such sureties as the court directs, conditioned upon the defendant's faithful performance of the conditions of the stay. Upon the failure of the defendant to perform any of the conditions of stay, the plaintiff may file an affidavit executed by the plaintiff or attorney, stating the facts of such default, and the writ of restitution may forthwith be issued.

(d) Writ of restitution; form and contents. The writ of restitution shall be in the name of the court, sealed with its seal, signed by its clerk, directed to any authorized law enforcement officer and in substantially the following form:

BAD RIVER TRIBAL COURT

THE BAD RIVER TRIBE To any law enforcement officer:

The plaintiff, , of recovered a judgment against the defendant, of , in an eviction action in the Bad River Tribal Court, on the day of , , to have restitution of the following described premises:

(description as in complaint), located on the Bad River Reservation, in Ashland County, Wisconsin.

YOU ARE HEREBY COMMANDED To immediately remove the defendant, , from the said premises and to restore the plaintiff, , to the possession thereof. You are further commanded to remove from said premises all personal property not the property of the plaintiff, and to store and dispose of the same according to law, and to make due return of this writ within ten days.

Witness the Honorable , Judge of the Bad River Tribal Court this day of , .

1.24.250 Appeal

Appeals may be taken only as provided under Chapter 1.21, except that notice of appeal under Section 1.21.090 must be filed within 15 days of the entry of judgment or order for writ of restitution appealed from. No stay of the judgment or writ of restitution may be granted to the defendant under Section 1.21.100(d) unless security for all rents, costs, and fees due, and all rent to be due during the pendency of the appeal is provided upon terms acceptable to the court.

1.24.260 Execution of Writ of Restitution

(a) All writs executed by a county sheriff shall be performed pursuant to sec. 799.45, Wis. Stats.

(b) In all writs executed by an officer action under tribal authority the officer shall:

(1)(A) Remove from the premises described in the writ the person of the defendant and all other persons found upon the premises claiming under the defendant, using such reasonable force as is necessary.

(B) Remove from the premises described in the writ, using such reasonable force as may be necessary, all personal property found therein not the property of the plaintiff.

(C) Exercise ordinary care in the removal of all persons and property from the premises and in the handling and storage of all property removed therefrom.

(2) In accomplishing the removal of property from the premises described in the writ, the officer is authorized to engage the services of a mover or trucker.

(A) Except as provided in par. (B), the property removed from such premises shall be taken to some place of safekeeping within the county selected by the officer. Within 3 days of the removal of the goods, the officer shall mail a notice to the defendant as specified in sub. (3) stating the place where the goods are kept and shall deliver to the defendant any receipt or other document required to obtain possession of the goods. Warehouse or other similar receipts issued with respect to goods stored by the officer under this subsection shall be taken in the name of the defendant. All expenses incurred for storage and other like charges after delivery by the officer to a place of safekeeping shall be the responsibility of the defendant, and any person accepting goods from the officer for storage under this subsection shall have all of the rights and remedies accorded by law against the defendant personally and against the property stored for the collection of such charges. Risk of damages to or loss of such property shall be borne by the defendant after delivery by the officer to the place of safekeeping.

(B) When, in the exercise of ordinary care, the officer determines that property removed from premises described in the writ is without monetary value, he may deliver or cause the same to be delivered to some appropriate place established for the collection, storage and disposal of refuse. In such case he shall notify the defendant as specified in sub. (3) of the place to which the goods have been delivered within 3 days of the removal of the goods. The exercise of ordinary care by the officer under this subsection does not include searching apparently valueless property for hidden or secreted articles of value.

(3) Manner of giving notice to defendant. All notices required by sub. (2) to be given to the defendant by the officer shall be in writing and shall be personally served upon the defendant or mailed to the defendant at the last-known address, even if such address be the premises which are the subject of the eviction action.

(4) Return of writ; taxation of additional costs.

(A) Within 10 days of the receipt of the writ, the officer shall execute the writ and perform all of the duties required by this section and return the same to the court with the officer's statement of the expenses and charges incurred in the execution of the writ and paid by the plaintiff.

(B) Upon receipt of the returned writ and statement from the sheriff, the clerk shall tax and insert the judgment as prescribed by Section 1.22.130 the additional costs incurred by the plaintiff.

(5) Prior to executing a writ of restitution, the officer may require that the plaintiff deposit a reasonable sum representing the probable cost of removing defendant's property, based upon the reasonable removal and storage expenses of personal property and an officer's fee of $10.00 per hour spent on the execution of the writ.

1.24.270 Costs Recoverable

Costs shall be taxed and recovered as set forth in Section 1.22.130, plus fees charged to plaintiff by sheriff or other officer under Section 124.25(5).

1.24.280 Disclosure of Assets

In any eviction action in which a claim, counterclaim or cross claim for damages is included and upon which judgment is entered awarding damages, the requirements of Section 1.22.110 for disclosure of assets shall apply.

Chapter 1.25 Children's Code

1.25.010 Purpose

Children are the most important asset of the Bad River Tribe. In them lie the Tribe's future, and in their retention of Chippewa culture lies the preservation of the Tribe's past. Their health, safety, and welfare are paramount to the Tribe. It is the policy of the Tribe to strengthen family structures, to prevent family breakups, and to foster conditions favorable to the growth, spirit, culture, and individuality of each child. A child without knowledge of the past is directionless in the path forward; a child without a nurturing present is denied the strengths that lead to the future. It is the Tribe's policy to favor preventive action over belated reaction, mediation over confrontation, counseling over lecturing, conciliation over punishment - but in all decisions made under this code the welfare of the child shall be the ultimate touchstone.

1.25.020 Authority

This chapter is created under art. VI, sec. (1), Bad River Constitution.

1.25.030 Construction

(a) This chapter shall be liberally construed to effect the purposes stated in Section 1.25.010.

(b) This chapter shall be interpreted to comport with the customs and traditions of the Bad River Tribe. If the customs and traditions of the Bad River Tribe are inconclusive in any matter, federal law and law of the State of Wisconsin may be used for guidance.

(c) Except as inconsistent with any provision of this chapter, the provisions of chapters 101 through 123 shall apply to any proceeding initiated hereunder.

1.25.040 Children's Court

(a) There is hereby established a Bad River Children's Court exercising jurisdiction pursuant to this chapter.

(b) The chief judge and any associate judges of the Bad River Tribal Court shall serve as judges of the Children's Court.

(d) In the event that a proceeding is transferred to the Children's Court from any other court, the Children's Court may require conformity with the substantive and procedural law of the Tribe, and shall permit amendment of pleadings and other actions necessary to effect jurisdiction over the child and for conformity with this chapter.

(e) All records of the Children's Court shall be confidential. No person other than a party or a party's representative shall have access to court records, absent permission of the Children's Court.

1.25.050 Full Faith and Credit to Other Jurisdictions

(a) The Children's Court, Child Welfare Coordinator and other officials of the Bad River tribal government shall grant the public acts, records and judicial proceedings of other entities applicable to Indian child welfare proceedings full faith and credit to the same extent such entities give full faith and credit to the public acts, records and judicial proceedings of the Tribe.

(b) Without limitation to subsection (a) above, the Children's Court may, upon petition, accept a case originally brought in another court. Cases not accepted by the Children's Court within 60 days of the entry of the order transferring the case shall be deemed a declination of the case. The Children's Court may decline or waive jurisdiction over a child at any time and may grant hearings upon a motion to decline or waive jurisdiction.

(c) Upon entry of the order transferring the case, dispositional orders in effect when the case was transferred to the Children's Court shall have the same effect as if they had issued from the Children's Court, regardless of whether the Children's Court would in fact have had the power to make the order. Regardless of the law of other jurisdictions, the Children's Court may modify, extend, suspend or terminate any order issued in a transferred judicial proceeding pursuant to Section 1.25.200 of this chapter.

(d) Nothing in this section shall be construed to conflict with subSection 1.25.040(d) of this chapter.

1.25.060 Jurisdiction

(a) The Children's Court shall have jurisdiction over a child upon a petition filed by any person with an interest in the child alleging that the child is a child in need of care because one or more of the following conditions exist:

(1) The child is the victim of or in danger of physical or emotional harm by other than accidental means, except that any child who is or may be the victim of sexual abuse or exploitation may be referred to appropriate state or county agencies or services.

(2) The child is or may be deprived of necessary custodial, medical, or other care for reasons other than poverty.

(3) The child has been abandoned by identified or unidentified parents, unless provision for necessary custodial, medical, and other care has been satisfactorily arranged and maintained.

(4) The child is habitually truant from home and either the child or parent, guardian or relative in whose home the child resides signs the petition requesting jurisdiction.

(5) The child is habitually truant from school, and the school attendance officer attests that the activities required under sec. 118.16(5), Wis. Stats., or the applicable law in the jurisdiction if not in Wisconsin, have been completed.

(6) The child's parent, court-appointed guardian, or custodian signs a petition alleging that he or she is unable to provide necessary custodial care or make appropriate provision for the child's special custodial, medical or other specified needs after consultation with the Child Welfare Coordinator.

(7) The child's parent has failed to maintain an appropriate parental role or has failed to maintain significant contact with the child for a period of one year.

(8) The child is under 12 years of age and has violated tribal, state, or federal law.

(9) The child has been placed for care or adoption in violation of law.

(10) The child is without a parent or guardian.

(11) The child is receiving inadequate care during the period of time a parent is missing, incarcerated, hospitalized, or institutionalized.

(12) The child is suffering from alcohol or other drug abuse, for which the parent is unwilling or unable to provide appropriate treatment.

(13) The child has not received immunizations as required by law.

(14) The child is a Prenatal Exposed Newborn, but only if the Abinoojiyag Resource Center files a petition alleging that the child is in need of care within 60 days of the child's birth.

(b) In addition to jurisdiction granted by other sections of this chapter, the Children's Court shall have jurisdiction to:

(1) Order a law enforcement officer or the child welfare coordinator to take a child into custody pursuant to Section 1.25.120(b) and conduct other proceedings called for in Sections 1.25.120 to 1.25.150 inclusive.

(2) Terminate the parental rights of a parent of a child pursuant to Section 1.25.230.

(3) Appoint a guardian for a child pursuant to Section 1.25.280.

(4) Enter an order of adoption resetting the parental relations of a child pursuant to Section 1.25.250.

(5) Suspend the parental rights of a parent pursuant to Section 1.25.230.

(6) Enter an order of Customary Adoption resetting the parental relations of a child pursuant to Section 1.25.260.

(7) Conduct any other proceedings not contrary to express tribal law necessary to exercise delegated and inherent authority held by the tribe to protect child members of the tribe and children eligible for tribal membership.

(c)(1) In addition to jurisdiction granted by other sections of this chapter, the Children's Court shall have jurisdiction over persons 18 years or older alleged to have contributed to, encouraged, or tended to cause, by act or omission, a condition of a child as described in Section 1.25.060(a).

(2)(A) The Children's Court may make orders with respect to any person 18 years or older who has contributed to, encouraged, or tended to cause, by any act or omission, a child to be a child in need of care, whether or not the child is actually adjudicated a child in need of care, if the natural and probable consequences of the act or failure to act would be to cause the child to be a child in need of care.

(B) No order with respect to any person 18 years or older may be entered until the person is given an opportunity to be heard upon the allegation against him or her. Such person shall be served no less than ten day prior to a hearing under this subsection with written notice of the time, place, and purpose of the hearing. Any such person who fails to comply with any order issued by the Children's Court under this subsection may be proceeded against for contempt of court.

(d) The Children's Court shall have continuing jurisdiction, subject to Section 1.25.150 and 1.25.180(h), over a child who is determined to be subject to this chapter and shall have the power to modify or dismiss previous orders, expunge the child's records, or consider petitions based on new evidence concerning the child.

(e) The child welfare coordinator is an officer of the Children's Court and has the authority to receive referrals, investigate reports, ascertain whether a child is probably subject to this chapter, take a child into emergency custody to protect the child's safety or welfare, file petitions, represent the Tribe in matters before the Children's Court, enter into consensus dispositions on behalf of the Tribe, and to report as required by the Court on the conditions of a child who is subject to this chapter.

(f) Whenever an order rendered under this chapter conflicts with a custody, physical placement, or other family court order rendered by any court, the order under this chapter shall take precedence. Nothing in this chapter shall be construed to limit the power of the Court to have jurisdiction over a child under other sections of this Code or other law.

1.25.070 Waiver of Jurisdiction Protest of Child's Tribe

When a petition is filed regarding an Indian child who is domiciled on the Reservation but who is not a member of or eligible for membership in the Bad River Tribe, the party filing the petition shall notify the child's tribe, or any tribe(s) in which the child is eligible for membership. Any party filing any document in the case shall serve the child's tribe(s) with the document. If a child's tribe objects to the jurisdiction of the Bad River Tribal Court prior to the entry of a final judgment in the case, the Court shall waive jurisdiction over the child. Such a child shall be deemed an ineligible child subject to Section 1.25.260.

1.25.080 Definitions

For purposes of the Code, the following definitions shall apply:

(a) "Child" shall mean a person under 18 years of age who is:

(1) A member of or is eligible for membership in the Bad River Band of the Lake Superior Tribe of Chippewa Indians, whether or not resident or domiciled on the Reservation and whether or not the subject of a child welfare proceeding in any court; or

(2) Any Indian child who is not a member of or eligible for membership in the Bad River Band of the Lake Superior Tribe of Chippewa Indians, but who is domiciled on the Bad River Reservation, provided that the child's parents or legal guardian consent to any jurisdiction exercised by the Bad River Tribe, except that no child who is the subject of a proceeding in any other court shall be deemed a child subject to this chapter, unless such proceeding is properly transferred to the Children's Court.

(b) "Guardian" means a person appointed by any court to be guardian of a child's person.

(c) "Custodian" means a person having care and custody of child under any arrangement with the child's parent or guardian or pursuant to order of court.

(d) "Extended family" shall include persons over 18 years of age who are a child's brother, sister, step-parent, grandparent, aunt, uncle, first cousin, niece, or nephew.

(e) "Law enforcement officer" includes any tribal, state or county social worker, peace officer, military or other security official of any jurisdiction within the boundaries of the United States and Canada

(f) "Child welfare coordinator" means the director of the Indian Child Welfare Office of the Bad River Band of the Lake Superior Tribe of Chippewa Indians or his or her designee

(g) "Secure custody" means a locked facility approved by the child welfare coordinator and tribal attorney for the secure, temporary holding in custody of children.

(h) "Person with an interest in a child" means the child if 14 years of age or over, the child's parent, guardian, or a custodian, a member of the child's extended family, a law enforcement or conservation officer when jurisdiction under Section 1.25.060(a)(8) is alleged, and the child welfare coordinator.

(i) "Child welfare proceeding" has the meaning given to "child custody proceeding" in Title 23, United States Code 1903(1) (1992) and shall be defined to encompass all delegated and inherent power held by the Bad River tribal government applicable to child welfare proceedings.

(j) "Adoptee" is defined as the individual, child or adult who is adopted or is to be adopted.

(k) "Adoptive Parent" is defined as the person establishing or seeking to establish a permanent parent-child relationship with a child who is not their biological child.

(l) "Best Interests of the Child" is defined as:

(1) the ability of the tribe and reservation community to provide for the care of the child;

(2) the wishes of the tribe, parents, party or parties;

(3) the preference of the child if the child is of sufficient age to express a preference;

(4) the intimacy of the relationship between the parties and the child; the child's adjustment to home, school and tribal community;

(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(6) the permanence, as a family unity, of the existing or proposed adoptive home;

(7) the mental and physical health of all individuals involved;

(8) the capacity and disposition of the parties to give the child love, affection, guidance and to continue educating the child in the child's tribal culture and heritage.

(m) "Best Interests of the Tribe" is defined as a variety of factors including but not limited to the ability of the tribe and its members to provide for the child; the ability of the tribe and its members to provide for the continuation of the tribe's culture, language, history, religion, traditions and values through its children if those children are taken away and not taught these things throughout their daily lives. The ability of the Tribe to continue as a viable cultural entity will be hindered by the loss of its children. Every child is a gift from the Creator and is viewed by the Tribe as crucial to the future of the tribe as a whole.

(n) "Birth Parent" is defined as the biological parents listed on the child's birth certificate, enrollment application or acknowledged as the birth parent by law.

(o) "Customary Adoption" means a traditional tribal practice recognized by the community and tribe which gives a child a permanent parent-child relationship with someone other than the child's birth parent(s).

(p) "Final Decree of Customary Adoption" is defined as the final court order which established the permanent legal relationship between the child and the adoptive parent(s) and establishes any contact which may be allowed with the biological parent.

(q) "Final Order Suspending Parental Rights" means a final order of the court which suspends the rights of a biological parent to provide for the care, custody and control of their child. A Final Order Suspending Parental Rights may establish the parameters of contact between the birth parent and the child if that contact is in the child's best interests.

(r) "Suspension of Parental Rights" is defined as the suspension of the rights, powers, privileges, immunities, duties, and obligations existing between parent and child, as agreed by biological parent; however tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such suspension for the child(ren).

(s) "Prenatal Exposed Newborn" means a child who has been exposed to addictive illicit drugs or prescription drugs or alcohol while in the womb and exhibits symptoms consistent with Neonatal Abstinence Syndrome after birth, or the child or the mother tests positive for addictive illicit drugs or addictive prescription drugs during the pregnancy or shortly after the child's birth. Addictive illicit and prescription drugs include, but are not limited to: amphetamine, including methamphetamine,, barbiturates, benzodiazepines, cocaine and its metabolites, marijuana, opiates, narcotics and opioids, such as fentanyl, oxymorphone, hydromorphone, codeine, dihydrocodeine, ethylmorphine, hydromorphone, hydrocodone, morphine, methadone, and buprenorphine. The definition “Prenatal Exposed Newborn” does not include children whose sole exposure to addictive prescription substances comes through medication provided to the mother during labor and childbirth.

1.25.090 Pre-Petition Procedure

(a) Any person may inform the child welfare coordinator of facts suggesting a child is in need of care, whereupon the child welfare coordinator shall investigate such facts and either file a petition or tell the complainant the reasons why not, provided that the child welfare coordinator shall not disclose any confidential information or any information which is not in the child's interest to disclose. If the child welfare coordinator decides to not file a petition under Section 1.25.160, he or she may attempt to obtain an Informal Resolution rather than declining all further proceedings.

(b) All Informal Resolutions shall be in writing, shall clearly state all of the obligations of each of the parties in such a way that their performance may be determined, shall include the effective period of the Resolution, shall bear the signatures of the child welfare coordinator, the child if over twelve years of age, and the parent or parents having legal custody or physical placement rights, and any guardian. All parties to an Informal Resolution shall receive a copy of it.

(c) The existence of an Informal Resolution shall not preclude the filing of a petition under Section 1.25.160 if any party fails to comply with the Resolution or if any new factor or newly discovered factor requires the filing of the petition for the protection of the child's best interests.

(d) Any Informal Resolution which includes an out-of-home placement shall be filed with the court the and shall be reviewed by the court within six months of its effective date, and thereafter within six months of each judicial review.

(e) At any time after the filing of a petition under Section 1.25.160 the parties may by stipulation resolve any matter, subject to the approval of the Court.

1.25.100 Parties

(a) In the absence of a court order to the contrary, parties to a Children's Court proceeding held in the interest of a child shall be the child, the Tribe by the child welfare coordinator, and the child's parents, guardians, and custodians. For the purpose of this chapter, persons who are parties to a Children's Court proceeding are deemed "affected persons." After a termination of parental rights, no parent whose rights have been terminated shall be entitled to notice of any further proceedings regarding the child, except as the court may deem appropriate.

(b) The Court shall, in all proceedings where a conflict exists among the parties, appoint a guardian ad litem to represent, for purposes of the proceeding, the interests of the child. Appointment shall be made upon filing of the petition, and shall only be of an adult whom the Court is satisfied is familiar with this chapter and with the procedures of the Court, and will sincerely and competently represent the child. The guardian ad litem shall be compensated at a rate set by order of the Children's Court.

(c) In all proceedings before the Court, the child welfare coordinator shall represent the interests of the Bad River Tribe. The child welfare coordinator may be represented by the tribal attorney or other attorney appointed by the Tribe to represent its interests before the Children's Court.

(d) Any party to a proceeding under this chapter may be represented by an attorney at the party's expense, provided the attorney is admitted to practice before the Bad River Tribal Court.

(e) Upon a showing of good cause, and if the best interests of the child so indicate, the Court may allow or invite persons other than affected persons entitled to notice under Section 1.25.100(a) to intervene and participate in any or all phases of the proceeding.

1.25.110 Prenatal Exposure

There shall be a presumption that a child is in need of care if the child is diagnosed with Neonatal Abstinence Syndrome by a doctor who is competent to make that diagnosis, or samples of blood, urine or meconium of the child or the mother obtained during pregnancy, or shortly after birth, indicate the presence of addictive illicit or non-prescribed addictive prescription drugs after analysis using current standards for drug screens. That presumption can be overcome, by clear and convincing evidence, showing that the birth mother made the following efforts to prevent harm to her unborn child during the pregnancy:

(a) Only using addictive prescription medication as prescribed by a physician and lowering doses of addictive medication during the pregnancy, as recommended by the prescribing physician;

(b) Avoiding all addictive illicit drugs, and addictive prescription drugs without a prescription, as shown through drug screens testing the mother's blood or urine throughout the pregnancy;

(d) Obtaining all necessary and recommended prenatal care, including mental health services if recommended by her health care provider(s).

1.25.120 Taking a Child into Custody

(a) Any law enforcement officer, or the child welfare coordinator, may take a child into custody under circumstances in which the officer or coordinator reasonably believes:

(1) The child has run away from his or her parents, guardians, or custodians.

(2) The child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from these surroundings is necessary.

(3) The child will cause injury to self or another, or to the property of another, or be subject to injury by another.

(4) The child's parent, guardian, or custodian, is unavailable, unwilling, or unable to provide necessary supervision or care such that the child's safety or well-being is at imminent risk.

(5) The child will run away or be taken away so as to be unavailable for convenient further Children's Court proceedings.

(6) The child is 60 days old or younger and has been treated for, or diagnosed with, Neonatal Abstinence Syndrome by a doctor who is competent to treat or diagnose that condition, or samples of blood, urine or meconium of the child or the mother obtained during pregnancy or shortly after birth indicate the presence of addictive illicit drugs or non-prescribed addictive prescription drugs after analysis using current standards for drug screens.

(b) Any law enforcement officer or the child welfare coordinator shall take a child into custody upon written order of the Children's Court, which may be entered upon a verified petition showing that the welfare of the child demands the child's immediate removal from his or her present placement or custody. A petition for an order to take a child into custody may only be filed by the child welfare coordinator.

(c) Any person taking a child into custody under this section shall immediately attempt to notify the parent, guardian or custodian by the most practical means, and shall continue to make such attempts until notification is made. Any law enforcement officer acting under this section shall also immediately attempt to notify the child welfare coordinator. If the child is physically transferred to the child welfare coordinator, the coordinator shall thereafter continue notification attempts until notification is made.

(d) If the person taking a child into custody, or the child welfare coordinator, believes the child to be in need of prompt medical diagnosis or treatment, that person shall deliver the child to a hospital or physician, for that purpose.

1.25.130 Release from Custody

(a) Any child taken into custody shall be released as soon as it is possible to do so, while protecting the child from the conditions causing the taking into custody.

(b) The person taking a child into custody, or the child welfare coordinator, shall attempt to immediately release the child to his or her parent, guardian, or custodian, unless such release is inconsistent with the child's best interests, or, if the parent, guardian, or custodian is unwilling or unable to receive such child, to a responsible adult, with suitable counsel, advice, or warning, in which case the name and address of the person to whom the child has been released shall be immediately given to the parent, guardian, or custodian, unless there is reason to believe the release of such information will endanger the child or the person to whom the child has been released. If the procedure given in Sections 1.25.140, 1.25.150 and 1.25.190(a) is not followed, the child's parent, guardian or custodian shall have a right to exercise custody and supervision over the child.

1.25.140 Holding a Child in Custody

(a) A child may be held in custody if the child welfare coordinator has probable cause to believe that any of the conditions enumerated in Section 1.25.110(a) or (b) exists.

(b) No child shall be held in secure custody unless the child consents to secure custody in order to protect him or her from an imminent physical threat from another, and such secure custody is ordered by the Children's Court.

(1) The home of a parent or guardian.

(2) The home of a relative.

(3) The home of a custodian.

(4) The home of another responsible adult.

(5) A licensed foster home provided the placement does not violate the terms of the license.

(6) A licensed group home provided the placement does not violate the terms of the license.

(7) A nonsecure facility operated by a child welfare agency.

(8) A hospital or physician's office.

(9) A drug or alcohol treatment facility.

(d) The child welfare coordinator shall immediately notify the child's parent, guardian, or custodian that the child is in custody, the reasons for the custody, and the location of the child unless there is reason to believe that such information will present imminent danger to the child.

1.25.150 Hearings for Child in Custody

(a) For any child who has been taken into custody and not released under Section 1.25.130, a hearing shall be held to determine whether the criteria exist under Section 1.25.110 to Section 1.25.140 to continue holding the child in custody. The hearing shall be held within 24 hours of the time the child is taken into custody, excluding Saturdays, Sundays, holiday, any time after 4:00 p.m. of the day preceding any such day, and any time before 9:00 a.m. of the day succeeding any such day. A petition under Section 1.25.160 shall be filed before or at the hearing. All reasonable steps shall be taken to notify the child's parents, guardian, and custodian of the hearing. If the parent, guardian, and custodian does not receive actual notice, he or she may request a rehearing by right if the child is still under the court's jurisdiction or the issue is not otherwise moot.

(b) If, within the time provided by Section 1.25.150(a), no hearing is held, or no petition is filed, the child shall be released from custody, unless the court finds either ex parte or at a post-deadline hearing that probable cause exists to believe that the child is in imminent danger to self or another, or that the child's parent, guardian, or custodian is unwilling or unable to provide adequate supervision and care, in which case one 48 hour extension may be granted during which time the child shall remain in custody pending the filing of a petition. Ex parte findings of probable cause shall be reconsidered, and an opportunity to present oral and written evidence and argument shall be provided, by right, if any affected person requests reconsideration or hearing. Hearings under this subsection may be conducted by telephone.

(c) The hearing required under this section may be waived by the child's parents, guardians, or legal custodians or, if the child is over 12, by the joint waiver of the above and of the child. If a guardian ad litem is subsequently appointed for the child, or if the parents, guardian, or legal custodians subsequently retain counsel, such waiver may be subsequently withdrawn and a hearing demanded, which shall be scheduled as soon as practicable.

(d) The petitioner shall make all practicable efforts to secure the appointment of a guardian ad litem prior to the hearing.

(e) A copy of the petition shall be given to the child's parent, guardian, or legal custodian, and to the child if 12 or older, as soon as practicable, and in no case later than the commencement of the hearing.

(f) At the commencement of the hearing, the court shall advise the child, and the parents, guardians, or custodians, of the allegations made, the possible consequences of the hearing, the right to counsel at a party's own expense, the right to confront and cross-examine witnesses, and the right to present witnesses.

(g) If the court finds that one or more of the conditions enumerated in Section 1.25.110(a) or (b) exists, it may continue custody in any of the placements enumerated in Section 1.25.140. The Court may also impose reasonable restrictions on the child's travel, association with other persons, or places of abode, and may assign the child to the supervision of the Bad River Indian Child Welfare Department. Reasonable restrictions may be placed upon the conduct of the parents, guardians, custodians, or other responsible adult as necessary to secure the safety of the child. Any order entered under this section shall be reduced to writing within ten days thereof.

(h) Any order under this section shall be subject to rehearing for good cause.

1.25.160 Petitions

(a) All petitions under this chapter shall be filed with the Children's Court, shall be made under oath, and shall include the child's name, date of birth, parents' names, and child's parents' last known addresses, and the names and addresses of all other affected persons, if known.

(b) All petitions shall allege facts upon which the petitioner asserts jurisdiction exists. No petition shall be sufficient if it merely reiterates the language of the Code section invoked, but shall include reference to the specific subsection of the Code section upon which petitioner alleges jurisdiction.

(c) No petition filed by the child welfare coordinator shall be deemed insufficient on account of hearsay, provided that there is a sufficient indication alleged of the declarant's reliability.

(d) All petitions shall be filed with the clerk of court, with copies served, by the petitioner, on the child welfare coordinator and all parties who may be affected by an order concerning the subject child.

(e) Unless impracticable or ineffective, petitions shall be served personally or by first class mail.

1.25.170 Initial Hearing

(a) Upon petition by the child welfare coordinator or any party pursuant to Section 1.25.060(b), the court shall schedule an initial hearing. The hearing shall be scheduled within ten days of the date of the petition in the case of a child held in custody, and within 30 days of the date of the petition in all other cases. All affected persons and the child welfare coordinator shall be served notice of this and all other hearings and shall be given a reasonable opportunity to prepare and be heard.

(b) Any affected person has the right to be represented at a hearing by counsel at his or her own expense. The petitioner shall secure the appointment by the court of a guardian ad litem for any child who is subject of a petition. The court may, on its own motion or that of any party, appoint a guardian ad litem for any minor parent of a child subject of a petition.

(c) At the initial hearing, the child and the parent, guardian or custodian shall be informed of their rights as follows:

(1) The right to remain silent, although the silence may be considered adversely against the party remaining silent.

(2) The right to confront and cross-examine witnesses.

(3) The right to counsel at the party's own expense.

(4) The right to subpoena and present witnesses.

(5) The right to have the allegations of the petition proven by clear and convincing evidence.

(6) The right to demand for cause or pursuant to Section 1.04.040 a substitution of judge, which if not made before the close of the initial hearing is deemed waived.

(d) The child and the non-petitioning parties shall state whether they intend to contest the allegations of the petition.

(e) If no party intends to contest the allegations of the petition, the court shall set a date for a dispositional hearing no later than 30 days from the date of the initial hearing. If all parties consent, the court may proceed immediately with the dispositional hearing.

(f) If the petition is contested, the court shall set a date for an adjudicatory hearing no later than 20 days from the date of the initial hearing.

(g) Before accepting an admission or a statement of no contest to a petition, the court shall make inquiry to determine that the admission or statement is informed, voluntary, and made with an understanding of the potential dispositions that could result from the admission or statement. The court shall also establish whether any promises or threats were made to elicit the admission or statement, and shall inform any unrepresented parties that a lawyer could discover defenses or mitigating circumstances not apparent to them. The court shall also elicit a factual basis for the admission or statement.

1.25.180 Adjudicatory Hearing

(a) At the adjudicatory hearing the court shall determine whether the subject child is within the jurisdiction of the court pursuant to the allegations of the petition as shown by clear and convincing evidence. In the event jurisdiction is found, the court shall schedule a dispositional hearing no later than 30 days from the date of the adjudicatory hearing. If all parties consent, the court may proceed immediately to the dispositional hearing.

(b) The jurisdiction of the court shall extend for one year plus thirty days from the date of a finding of jurisdiction.

(c) All hearings shall be to the Court without a jury, all hearings shall be closed to the public, and all records shall remain confidential except for good cause to the contrary shown to the court. All proceedings shall be recorded electronically, or verbatim by a licensed court reporter.

1.25.190 Disposition

(a) At any stage of a proceeding under this chapter the court may order interim disposition for the child. Such an order may include any disposition authorized by Section 1.25.190(d).

(b) Upon entry of an adjudication order, the court shall determine the disposition appropriate for the child. The child welfare coordinator and the petitioning party if other than the child welfare coordinator, shall submit reports to the court summarizing the child's personal history, the circumstances leading to the petition, the resources available and suitable to the child and family, the disposition recommended, and the rationale for the disposition. The report shall specify how the disposition is related to the circumstances leading to the petition and the role each affected person is expected to play in the removal of such circumstances in the future. Any other party may submit such a report. All such reports shall be filed with the court no later than four (4) days prior to the dispositional hearing. Copies shall be provided to the child's guardian ad litem and counsel for any party, or directly to any party not represented by counsel. No additional copies shall be made. All copies shall be returned to the court at the close of the dispositional hearing.

(c) Any party requesting out-of-home placement of a child shall submit to the court, and distribute as provided in subSection 1.25.190(b), above, a report enumerating the attempts made to prevent an out-of-home placement, and a statement describing the efforts that will be made to make it possible for the child to return home.

(d) In considering an appropriate disposition, the court may consider any or all of the following factors:

(1) Special physical or emotional needs of the child.

(2) Social, cultural, or religious tradition of the child, the child's family, or the Tribe,

(3) Availability of resources within the child's extended family,

(4) The child's preference, if the child is over 12 years of age, and the recommendation of the guardian ad litem,

(5) The recommendation of the child welfare coordinator or any person with an interest in the child,

(6) Recommendations of professionals experienced in services to children,

(7) Other factors calculated to meet the needs of the individual child and purposes of this chapter.

(e) The Court may order disposition in any or all of the following ways:

(1) Counsel the child or the parent, guardian, or custodian.

(2) Remand the child to the custody of a parent, guardian, custodian, or other responsible relative in the child's home, with supervision of the child by the child welfare coordinator and reasonable rules of conduct by the child and the parent, guardian, custodian, or other responsible relative.

(3) Participation of the child and/or parent or custodian in a specified counseling, treatment, or educational program, which may include use of traditional or culturally appropriate services or activities.

(4) Restitution in any reasonable amount for acts of the child resulting in damage or injury to any person or the Tribe.

(5) Community service appropriate to the needs or abilities of the child.

(6) Removal of the child from the home and/or placement with a member of the child's extended family, a tribal member licensed foster home, a licensed Indian foster home, an institution for children approved by the Tribe, or any other foster home.

(7) Inpatient alcohol, drug, or mental health treatment for specified purposes for a specified period of time.

(8) Any other disposition calculated to provide for physical, mental, emotional, or developmental needs of the child.

(9) Such order may also provide for visitation by parties or extended family members as appropriate.

(f) Any party to a proceeding under this chapter may seek and the Court of its own motion may direct the child welfare coordinator to seek enforcement of any court order in any other appropriate court.

(g) The Court on its own motion may waive, and any party to a proceeding under this chapter may seek by motion and for good cause shown a waiver of, continuing jurisdiction over a child and refer a case to any other court having, in such a case, jurisdiction.

(h) In any dispositional placement of a child, the court shall require testimony and make findings that services designed to prevent the necessity of out-of-home placement are appropriate and available and have been offered. This shall not require any petitioning party to prove that services that are either not appropriate or not available through or from the Tribe have been offered, attempted, or rejected.

(i) In any out-of-home placement, the court shall consider and make findings about the attempts made to prevent out-of-home placement and availability or appropriateness of custodial care within the child's extended family or with tribal members before ordering a placement in any other home or facility.

(j) Whenever the court orders a child to be placed outside the home, the court shall orally inform the parents who appear in court, and shall include in the written order a statement, of any ground for termination of parental rights under Section 1.25.230 that may be applicable.

1.25.200 Extensions and Modifications

(a) At any time in the last two months of the period in which a dispositional order issued by the Children's Court or issued by another court and subsequently transferred to the Children's Court is effective, any person with an interest in the child, or any person who was a party to the original proceedings may move or petition for an extension of the court's or dispositional order.

(b) In the event a motion or petition for extension is filed within the time period specified in Section 1.25.200(a), the Court may make such temporary extension orders as are necessary to preserve its jurisdiction and to protect the interests of the child pending a full hearing on the extension motion or petition.

(c) The scope of inquiry at the hearing on an extension is whether the conditions that warranted the adjudication continue or whether new circumstances provide jurisdiction pursuant to Section 1.25.060. If an extension is sought on the ground of new circumstances, the circumstances justifying extended jurisdiction shall be alleged in the petition. To assist the court, parties and guardian ad litem, parties may prepare and distribute court reports similar to those called for in Section 1.25.190.

(d) Upon motion or petition by any person with an interest in the child, for good cause shown, the Court may modify a dispositional order any time before one year after entry of the order sought to be modified unless a shorter period is provided by the Court in the order.

1.25.210 Discovery

(a) Copies of all peace officer reports, including but not limited to officers' memoranda and witness statements, shall be made available upon request of the tribe's attorney, to counsel or to the child's guardian ad litem prior to the initial hearing. The child, through his or her guardian ad litem, shall be the only non-petitioning party to have access to such reports in proceedings filed under Section 1.25.060(a)(8).

(b) All records relating to a child which are relevant to a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel, upon demand, and upon presentation of releases whenever necessary. Persons entitled to inspect records may obtain copies of them at their expense upon permission of the custodian of the records or the court. The court may require counsel not disclose material contained in the records to any other person if the court reasonably believes such disclosure would be harmful to the child.

(c) Counsel and guardian ad litem shall have the right to view any videotaped oral statement of the child upon reasonable notice.

1.25.220 Psychological and Other Examinations

The Court may in any proceeding under this chapter, order any child and the child's parents, guardians, or custodians, to submit to a psychological, mental, or developmental examination, or to a drug and alcohol abuse evaluation, if the court reasonably believes that any condition that may be illuminated by such an examination would assist in the adjudication or disposition of the case. The costs to any affected person of any such exam, if approved by the court, shall be paid by the Tribe, if the costs are not covered by a third-party payer.

1.25.230 Termination or Suspensiont of Parental Rights

(a) Termination of parental rights means that, pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are permanently severed; however, tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such termination.

(b) Termination of parental rights may be ordered only in a proceeding where the petition clearly states that the petitioner is seeking an order of termination of parental rights, and where the mother and father have been summoned to appear before the Children's Court. No termination of the parental rights of an unadjudicated or unacknowledged father may be ordered without evidence and findings as to paternity of the child to the satisfaction of the court.

(c) Suspension of Parental Rights means that pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are suspended as agreed by biological parent; however tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such suspension for the child(ren).

(d) Involuntary Termination. Termination of parental rights may be ordered only in cases where the court finds that one or more of the following grounds exists:

(1) Abandonment.

(A) The child has been left without provision for care or support and without reasonable expectation that a relative or other person would care for and support the child, and the petitioner has investigated and cannot locate the parent, or

(B) The child has been left by the parent with a relative or other person, or could reasonably expect that a relative or other person would provide for the child's care and support, or the child has been placed outside the parent's home by the order of a court of competent jurisdiction issued in a proceeding whereby the parent received either an oral or written warning that their parental rights may be terminated in subsequent proceedings, and in either case that the parent has failed to visit or communicate with the child for one year or longer, and that ninety days prior to the filing of the petition for termination of parental rights the parent was notified in a written notice to the parent's last known address that a petition would be filed; or

(2) Failure to remedy condition. The child has been under the jurisdiction of court or courts of competent jurisdiction for at least one year and the parent has made no progress in remedying the conditions requiring jurisdiction or the child has been under the jurisdiction of court or courts of competent jurisdiction for at least two years and it is unlikely that the parent will remedy the conditions requiring jurisdiction, and in either case that at least ninety days prior to the filing of a termination of parental rights petition that parent was warned that a petition would be filed; or

(3) Abuse. The child is under the jurisdiction of the court pursuant to Section 1.25.060(a)(1) and the Court finds that the facts establishing jurisdiction show a pattern of repeated or severe abuse; or

(4) Continuing denial of periods of physical placement. The parent has been denied all periods of physical placement or visitation rights by a court or courts of competent jurisdiction for a period of at least one year, the parent has been warned at least ninety days prior to the filing of a petition that a petition would be filed, and there is no currently pending action to modify the parent's physical placement or visitation rights in a court of competent jurisdiction.

(5) Failure to assume parental responsibility. The child is a non-marital child whose father has not subsequently adopted the child or married the child's mother and who has not established a substantial parental relationship with the child, meaning the acceptance and exercise of significant responsibilities for the daily supervision, education, protection, and care of the child, as evidenced by factors including but not limited to whether the father has ever expressed concern for or interest in the support, care, or well-being of the child or mother, and whether the father has neglected or refused to provide support.

(e) Voluntary Termination. The court may terminate the parental rights of a parent who has given his or her informed, voluntary consent as provided in this section.

(1) The parent appears personally at a hearing and gives his or her consent, the court explains the effect of a termination of parental rights, and the court has questioned the parent and found to its satisfaction that the consent is informed and voluntary.

(2) If the personal appearance of the parent before the court would be impossible or difficult, the court may accept written consent executed by the parent before an embassy or consular official, a military judge, or any judge of a court of record of another jurisdiction, and the consent is accompanied by the official's or judge's written findings that the parent was questioned and that the consent is informed and voluntary.

(3) A person who may be but has not been adjudicated the father of a non marital child may consent as in (1) or (2) by signing a written, notarized statement that he has been informed of and understands the effect of a termination of parental rights and voluntarily disclaims any rights he may have to the child, including the right of notice of further proceedings under this chapter.

(4) If the proceeding to terminate parental rights is held prior to an adoption proceeding in which the petitioner is the child's stepparent, the parent may consent to termination of rights as provided in (1) or (2) or by filing with the court an affidavit witnessed by two persons stating that he or she has been informed of and understands the effect of an order to terminate parental rights, and that he or she voluntarily disclaims all rights to the child, including the right to notice of further proceedings under this chapter.

(5) Any minor parent stating an intent to consent to the termination of parental rights shall have a guardian ad litem appointed for him or her by the court. The minor parent's consent to terminate rights shall not be accepted unless joined by his or her guardian ad litem. The consent of the guardian ad litem shall preclude later attack on the validity of the consent on the grounds of incompetence or minority.

(f) Petition.

(1) A petition for termination of parental rights may only be filed by a child's parent or by the child welfare coordinator.

(2) The petition commencing a proceeding for termination of parental rights shall set forth the following facts:

(A) The name, birth date, and address of the child or children.

(B) The names, birth dates, and addresses of the child's parents, and the names and addresses of any guardian or custodian.

(C) A statement that consent to termination of parental rights will be given as provided by this chapter, or a statement that consent will not be given, a statement of the specific grounds for involuntary termination under this chapter, and a statement of facts which petitioner alleges establish the grounds.

(g) Summons. A summons shall be filed with the petition, and shall set forth the following:

(1) The name and birth date of the child.

(2) The nature, location, date, and time of the initial hearing.

(3) Advice that the party summoned has the right to legal counsel at the party's own expense.

(4) Advice that failure to respond or appear at the hearing may result in a termination of the party's parental rights.

(5) Name of petitioner, and name, address, and phone number of petitioner's attorney, if any, or of the petitioner if unrepresented.

(h) Service.

(1) The petitioner shall cause the summons and petition to be served on the parent or parents of the child; any person who may be the father of the child, based on statements of the person or the mother; the guardian, guardian ad litem, and custodian of the child, as applicable; the child, if 12 years of age or older.

(2) Personal service shall be accomplished as provided by the tribal court code no less than seven days prior to the initial hearing or, if personal service cannot with reasonable diligence be accomplished, by publication one time in a newspaper likely to give notice to the party, together with mailing of the summons and petition to the party's last known address. The published notice shall contain the following information:

(A) The name of the party or parties to whom notice is given.

(B) The former address of the party or parties.

(D) The date and place of the birth of the child.

(E) The notice shall not include the name of the mother unless the mother consents. The notice shall not include the name of the child unless the court finds that inclusion is essential to give effective notice to the father.

(F) Advice that the parental rights of any parent or alleged parent who fails to appear may be terminated.

(G) Advice that any party has the right to representation by counsel at his or her own expense.

(3) Upon motion of petitioner, the court may waive constructive notice to any person whose identity is unknown but may be the father of the child if such notice appears unlikely to give the father effective notice.

(i) Initial Hearing.

(1) An initial hearing shall be held on a petition to terminate parental rights no later than 30 days after the filing of the petition. At the hearing the court shall determine whether any party wishes to contest the petition and shall inform the parties of their rights under Section 1.25.170(c).

(2) If the petition is contested the court shall set a date for a fact finding hearing no later than 45 days after the date of the initial hearing, unless all parties consent to an immediate hearing, in which case the court may immediately so proceed.

(3) If the petition is not contested, the court shall set a date for a dispositional hearing no later than 45 days from the date of the initial hearing, unless all parties consent to an immediate hearing and the report required by Section 1.25.230(j) has been filed, in which case the court may immediately so proceed.

(4) Any non-petitioning party shall be granted a continuance for the purpose of consulting legal counsel.

(5) A guardian ad litem shall be appointed for the child in any contested proceeding under this section.

(6) The court shall determine whether all interested parties, including parties who may be the child's father, have been notified. If the court determines that an unknown person may be the father of the child, the court shall further determine whether constructive notice will substantially increase the likelihood of actual notice to that person. If the court so determines, it shall adjourn the hearing and order such notice to be given. If the court determines that constructive notice will not substantially increase the likelihood of actual notice, the court shall order that the hearing proceed.

(j) Fact Finding Hearing.

(1) At the fact finding hearing the court shall determine whether the facts alleged in a petition that has been contested are true beyond a reasonable doubt. If the court so finds, it shall proceed immediately to a dispositional hearing unless all parties agree to a delay or unless the report required in Section 1.25.230(j) has not been completed, in which case the court shall set a hearing date no later than 45 days after the fact-finding hearing.

(2) If disposition is delayed, the court may enter an interim disposition under Section 1.25.190(a).

(k) Disposition.

(1) Prior to disposition, the child welfare coordinator shall prepare a report to the court including a complete social, adjudicatory, and dispositional history of the child and the parent, a statement of feasible alternative dispositions, if any, and a statement applying the standards and factors contained in Section 1.25.230(j)(2). The report shall include a description of efforts made to prevent removal of the child from the home and efforts made, if any, to return the child, and to remedy the conditions resulting in the termination proceeding. If the report recommends termination of both parents, or of the only living or known parent, the report shall include a statement of the child's likelihood of adoption, listing factors that might prevent it and factors that might facilitate it, and the interim plan and designated guardian recommended pending adoption. The report shall also contain a medical and genetic history of the child and birth parents on a form as provided by the Wisconsin Department of Health and Social Services.

(2) Court considerations. In making a decision about the appropriate disposition, the court shall consider the standard and factors enumerated in this section.

(A) Standard. The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter,

(B) Factors. In considering the best interests of the child under this section the court shall consider but not be limited to the following:

(i) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home,

(ii) The wishes of the child,

(iii) The duration of the separation of the parent from the child,

(iv) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child's current placement, the likelihood of future placements and the results of prior placements.

(3) Any party may present evidence relevant to disposition, and propose alternative dispositions. The court shall order either disposition listed below no later than ten days after a hearing on disposition.

(4) Upon a finding that grounds exist for a termination of parental rights the court shall order one of the following dispositions.

(A) The court may dismiss the petition.

(B) The court may order the termination of parental rights of one or both parents. If the rights of both parents or of the only living or known parent is terminated, the court shall transfer guardianship of the child to the child welfare coordinator, the Wisconsin Department of Health and Social Services, a relative of the child, with whom the child resides, if the relative has filed a petition for adoption, or an individual who has been appointed guardian of the child by a court of competent jurisdiction. The court may also transfer custody of the child to one of the agencies listed above or to a relative or other individual if the child has resided in the home of that individual for a meaningful period of time prior to the termination.

(5) The court shall inform any parent whose rights have been terminated of the provisions of 48.432 and 48.433, Wis. Stats.

(6) Any order under this section shall be reduced to writing and filed within 30 days of its rendition.

(l) Suspension of Parental Rights means that pursuant to court order, all rights, powers, privileges, immunities, duties, and obligations existing between parent and child are suspended as agreed by biological parent; however tribal membership, rights, privileges, entitlements, or obligations shall not be affected by such suspension for the child(ren).

(m) Petition for Suspension of Parental Rights.

(1) Any adult or agency possessing custody of a minor child may file a petition with the Clerk of Court seeking an order for the suspension of the parental rights of a parent of a child. The petition shall begin with the caption, “In re the Suspension of Parental Rights of (names of biological parents) to (name of child), born (birthdate of child).” The petition shall contain the following information:

(A) The name, address, and telephone number of the child’s tribe;

(B) The name, address, telephone number and age of the child’s parent whose parental rights are to be suspended;

(D) The name, address, and telephone number of any other relatives who may have an interest in the care, custody, and control of the minor child;

(E) A statement as to why an order for the suspension of parental rights of the parent is in the best interests of the child and the child’s tribe;

(F) A statement as to basis for the request of the suspension of parental rights, supported by medical, psychiatric, child protection worker, family member and/or psychological reports or testimony;

(G) A statement that no similar action is pending in a state or another tribal court having jurisdiction over the child.

(2) The petitioner shall sign the petition in the presence of a notary public and shall affirm under oath that the contents are true and correct except as to those matters based upon believe and, as to those matters, the petitioner reasonably believes them to be true.

(3) The petition shall be filed with the clerk of court, with copies served, by the petitioner, on the child welfare coordinator and the child’s parent(s); family member; caretaker, if any; and appropriate agencies of the Band which may have an interest in the proceeding or be of assistance to the Court in adjudicating the matter. The petition shall be served in the manner provided for in the Bad River Rules of Civil Procedure.

(n) Notice of Hearing on Petition to Suspend Parental Rights. Upon the filing of a petition seeking an order for the suspension of parental rights, the Clerk of Court shall schedule a hearing to be held thereon and shall cause written notice of such hearing to be served upon the petitioner; the child’s tribe; the child’s parent(s); family members; caretaker, if any; and appropriate agencies of the Band which may either have an interest in the proceedings or be of assistance to the court in adjudicating the matter. Such notice shall be served in the manner provided for in the Bad River Tribal Court Code, Section 1.11.040. A Guardian ad Litem shall be appointed to assist the Court in determining the best interests of the child. The petitioner(s), biological parents and Guardian ad Litem enjoy automatic party status.

(o) Hearing on Petition to Suspend Parental Rights.

(1)

(A) Attendance at hearing.

(B) The biological parent(s) and petitioner shall be present at the hearing in person or by telephone unless he or she has waived the right to appear in writing executed before the Clerk of Court or a notary and filed with the court, or unless the parent is unable to attend by reason of a medical condition as evidenced by a written statement from a licensed physician or other appropriate professional.

(2) Conduct of the hearing.

(A) The Court shall inform the parent(s) of their rights under this code and of the nature and consequences of the proceedings. In addition to any other rights afforded under the Indian Civil Rights Act, 25 U.S.C. Section 1301-03 (1968), as amended, or enumerated within the Tribal Code, petitioners, and other parties have the following rights:

(i) A biological parent has the right to refuse services provided by any social services agency, however, their refusal to accept services may have a significant impact on their ability to have contact with their child;

(ii) The parties have the right to have reasonable notice and to attend any hearing arising out of the filing of a petition for suspension of parental rights pursuant to Section 1.25.170. The biological parents and the petitioner have the right to be represented by counsel at their own expense at all proceedings;

(iii) The parties have the right to summon and cross-examine witnesses.

(iv) The biological parents and the petitioner have the right to seek independent medical, psychological or psychiatric evaluation of the child at their own expense.

(B) The Court shall further inform all other parties of their rights under the Tribal Code and pursuant to the Indian Civil Rights Act, 25 U.S.C., Section 1301-1303 (1968), as amended, including the right to summon and cross-examine witnesses.

(C) The Court shall hear evidence on the matter, if the Court determines that the biological parent(s) have given his, her or their informed and voluntary consent to the suspension of parental rights.

(D) The rules of evidence of the Tribal Court shall apply.

(E) The burden of proving the allegation of the petition shall be upon the petitioner and the standard of proof shall be clear and convincing evidence. There shall be a legal presumption of parent’s ability to parent until proven otherwise.

(F) The Court may continue the hearing, upon a showing of good cause, at the request of any party to the proceeding and enter such temporary orders, if any, as may be deemed just and reasonable to carry out the purposes of this Chapter.

(3) Findings on Petition to Suspend Parental Rights.

(A) In all cases, the court shall make specific written findings of fact, state separately its conclusions of law, and enter an appropriate judgment or order.

(B) The court may make findings that it is in the child’s best interest that a final order suspending the parental rights be entered and the court shall specify the basis of those findings.

(4) Final Order on Petition to Suspend Parental Rights.

(A) If the court determines that it is in the best interests of the child and the child’s tribe, it shall issue a final order for a suspension of parental rights. Such an order for the suspension of parental rights may include, but is not limited, to the following:

(i) A suspension of the parental rights of the parent, including the suspension of the right to the care, custody and control of the minor child and allowing the child to be adopted;

(ii) A suspension of the right of the parent to have contact with the minor child including contact in person, by mail, by telephone or through third parties or the order may allow for a contact agreement agreed upon by the parties to be ordered by the court;

(iii) Restraining a parent from contacting the minor child, the child’s foster parent, the child’s adoptive parent and/or the social services agency or agencies possessing information regarding the minor child, or by an agreement;

(iv) Ordering that the biological parents’ obligation to pay child support, except for arrearages, is hereby terminated;

(v) Ordering that any prior court order for custody, visitation or contact with the minor child is hereby terminated; and

(vi) Ordering that the parent shall have no standing to appear at any future legal proceedings involving the child.

(B) The suspension of parental rights doe not sever or affect in any way a child’s relationship to his/her tribe or any rights of inheritance from the biological parent(s). A suspension of parental rights does not require a change on the child’s birth certificate.

(C) The final order shall contain a statement regarding why it is in the best interests of the child and the child’s tribe to enter this order.

(D) Copies of any order for suspension of parental rights shall be served upon the parent and the agency or agencies having legal custody of the child and any other parties as directed by the court.

(E) Final orders for the suspension of parental rights may be reviewed by the court at the request of the biological parent, the agency or agencies possessing custody of the child only if one of the following occurs; if there is no final permanency order in effect after a period of one (1) year after the entry of the final order suspending parental rights; the adoption of the child fails; the adoptive parent is deceased; or if the adoptive parent(s) joins in the biological parents' request for review. Notice of this review shall be provided to all parties to the hearing at which the final suspension of parental rights order was issued.

1.25.240 Guardianship

(a) Upon petition by any person with a legitimate interest in the welfare of the child, including persons with an interest in the child as defined in Section 1.25.060(b), but excluding the child welfare coordinator, the Children's Court may appoint a guardian for a child who is without both parents or whose parents are unavailable for reason of incarceration or commitment or otherwise unable to care for the child. Except when the petitioner is a person with an interest in the child, the decision to allow a person to petition for the appointment of a guardian shall be in the Court's discretion. The Court may impose any restriction or limitation on the powers of a guardian, or condition its appointment on the guardian's performance of specified duties, not inconsistent with this chapter, it finds will help protect the child's interest.

(b) A guardian may be appointed to exercise custody and the power to make decisions of importance to the child's health, education, support and welfare. Such a guardian shall be known as a "guardian of the child." A guardian of the child may not manage the financial interests of the child.

(c) A guardian may be appointed to conserve the assets, income, and financial interests of a child, subject to a duty of disclosure and reporting to the Children's Court regarding such matters no less than annually. Any such order shall fix a date or dates for the filing of such reports and may require the posting of a bond or other conditions to protect the child's interests. Such a guardian shall be known as a "guardian of the child's estate." A guardian of the child may be guardian of the child's estate or separate guardians may be appointed.

(d) A petition for guardianship shall state:

(1) The name, residence, address, post office address, and date of birth of the proposed ward, the petitioner, and the proposed guardian or guardians.

(2) The reason guardianship is sought.

(3) Whether temporary or permanent guardianship is sought.

(4) The income and assets of the proposed ward.

(5) Whether any guardian of the proposed ward now exists.

(e) The summons shall include the time, date, and place of hearing on the petition, and the names of the proposed ward and guardian, the petitioner, and the petitioner's attorney, if any.

(f) The summons and petition shall be served upon any parent of the proposed ward and any current guardian of the proposed ward.

(g) The court shall appoint a guardian ad litem for the proposed ward, who shall be served by petitioner with a copy of the summons and petition.

(h) Any guardianship created under this chapter shall terminate upon the ward's eighteenth birthday.

1.25.250 Adoption

(a) Upon entry of the order of adoption, the relation of parent and child together with all the rights, duties, and other legal consequences of the natural relation of parent and child exist between the adoptive parents and adopted child.

(b) Any child, as defined in Section 1.25.080, may be adopted.

(1) A husband and wife jointly, or either if the other spouse is a parent of the child,

(2) An unmarried person who is at least 18 years of age,

(3) In the case of a child whose parents are not married, the child's natural father.

(4) Two unmarried persons co-habitating for a substantial period of time as a married couple.

(d) The consent of the following are required for adoption:

(1) The child if 13 years or older,

(2) The parent or parents if living including the adjudicated or acknowledged father of a child born out of wedlock, unless parental rights have been terminated.

(e) A proceeding for adoption shall be commenced by the filing of a verified petition which shall include:

(1) The name, address and date of birth, or expected date of birth, of the child to be adopted.

(2) The name, address, and age of the birth parents and of the proposed adoptive parents.

(3) The name and address of the petitioner and his or her relationship to the child.

(4) The identity of all persons or agencies which solicited, negotiated, or arranged for the adoption on behalf of any party.

(5) A report of all transfers of anything of value made or agreed to be made by the proposed adoptive parents or on their behalf in connection with the birth of the child, the placement of the child with the proposed adoptive parents, the medical or hospital care received by the child or by the child's mother in connection with the birth of the child and any other expenses, including the estimated legal expenses, of either the child's parent or the proposed adoptive parents. The report shall itemized and shall show the services relating to the adoption or to the placement of the child for adoption which were received by the proposed adoptive parents, by either parent, by any other person to whom payment was made by or on behalf of the proposed adoptive parents. The report shall also include the dates of each payment, the names and addresses of each attorney, doctor, hospital, agency or other person or organization receiving any funds from the proposed adoptive parents in connection with the adoption or the placement of the child with them.

(6) A statement of the tribal membership, if any, of each of the birth parents and each of proposed adoptive parents.

(7) The domicile of each of the birth parents, and the facts supporting the statement of domicile.

(8) Whether the birth parents' parental rights are terminated; if not that a petition for voluntary termination has been filed and that consent will be given. If rights have been terminated, a certified copy of the court order terminating the rights shall be attached to the petition.

(f) Upon receipt of a petition, the clerk of court shall set a date for hearing not later than 60 days from the date of filing. The petitioner shall serve notice of hearing on the child's guardian, or custodian, the natural parents if their parental rights have not been terminated, and the child welfare coordinator.

(g) Upon receipt of the petition, the child welfare coordinator shall perform an investigation as to the suitability of the petitioner as the child's adoptive parent. The coordinator shall complete the report and file it with the court, providing a copy to the petitioner no less than ten days before the hearing. If the report is unfavorable or discloses a situation which in the court's opinion raises a serious question as to the suitability of the proposed adoption, the court may appoint a guardian ad litem for the child who shall make an independent recommendation.

(h) At a hearing, the presence of the petitioners and if the minor if 14 or older, shall be required unless the court orders otherwise. The court shall determine from the child welfare coordinator's report and any evidence presented by the petitioners or the child's guardian whether the petitioners are suitable adoptive parents. The court shall receive evidence from interested parties and if it determines that granting the petition is in the child's best interest, it shall so order.

(i) Temporary order: Final Judgment

(1) The court may issue a temporary order giving the care and custody of the child to the petitioners pending the further order of the Court; provided, that if the child is a close blood relative of one of the petitioners, or is a stepchild of a petitioner or has been living in the home of the petitioner for more than 1 year preceding the date of filing the petition for adoption, the Court may waive the entry of a temporary order, and immediately enter a final judgment for adoption.

(2) Where a temporary order is entered, the child welfare coordinator may observe the child in his home and report to the Court within 6 months on any circumstances or conditions which may have a bearing on the child's adoption or custody.

(3) Upon application by the petitioner after 6 months from the date of the temporary order, or upon the Court's motion at any time, the Court shall set a time and place for additional hearing. Notice of the time and place of the hearing shall be served on the child welfare coordinator, the child, and the petitioners. The child welfare coordinator may file with the Court a written report of its findings and recommendations and certify that the required investigation has been made since the granting of the temporary order. After such hearing, if satisfied that the adoption is in the best interests of the child, the Court may enter a final judgment of adoption.

(j) The final order shall include a provision ordering the adoptive parents to maintain the child's relationship to the Tribe.

1.25.260 Customary Adoption

(a) Guiding Philosophy for Customary Adoption

(1) It is the fundamental belief of the Bad River Band of Lake Superior Chippewa Indians that its children are the sacred responsibility of the Tribe.

(2) One of the Bad River Band of Lake Superior Chippewa’s basic inherent sovereign rights is the right to make decisions regarding the best interests of its children including who should provide for the care, custody and control of its children. This Section is intended to assure a safe, stable, nurturing, and permanent environment for the tribe’s children and to provide for the protection of our children, our people, and our way of life.

(3) The principles that shall guide decisions pursuant to this code are: protection of the child’s safety, well-being and welfare and their sense of belonging; preservation of the child’s identity as a tribal member and member of an extended family and clan; preservation of the culture, religion, language, values, clan system and relationships of the Tribe.

(4) As an exercise of its inherent sovereignty the Bad River Band has the authority and jurisdiction to formally delegate the authority of its Children’s Court to adjudicate its own customary practices regarding child rearing and child custody.

(b) Purpose of Customary Adoption

Section 1.25.260, Customary Adoption, shall be liberally interpreted and construed as an exercise of the inherent sovereign authority of the Bad River Band of Lake Superior Chippewa to fulfill the following express purposes:

(1) To embody and promote the basic traditional values of the Bad River Band of Lake Superior Chippewa regarding the protection and care of the tribe’s children. The Bad River Band of Lake Superior Chippewa believes that it is the responsibility of the tribe, the tribal communities and extended families to protect, care for, and nurture our children.

(2) To promote the belief of the Bad River Band of Lake Superior Chippewa that children deserve a sense of permanency and belonging throughout their lives and at the same time they deserve to have knowledge about their unique cultural heritage including their tribal customs, history, language, religion, and values.

(3) To provide for the best interests of the tribe, tribal communities and the tribe's children.

(4) To afford judicial processes which allow for formal adjudications that address the issues of the rights, responsibilities, care, custody and control of minor children when the biological parents are unable or unwilling to provide a safe, stable, nurturing and permanent environment for their children by conferring jurisdiction upon the Bad River Children’s Court to hear and adjudicate such matters.

(1) Any adult may file a petition with the Clerk of Court seeking an order for the customary adoption of a minor child whose parents’ parental rights have been terminated or suspended. The petition shall contain the following information:

(A) The name, address, and telephone number of the child’s tribe;

(B) The name, address, and telephone number and age of the child to be adopted;

(D) The name, address, and telephone number of any other relatives who may have an interest in the care, custody and control of the minor child;

(E) The proposed name of the adoptee after the entry of the final order of customary adoption;

(F) A statement or a copy of the final order suspending or terminating the parental rights of the biological parent(s);

(G) A statement as to why a final order for customary adoption is in the best interests of the child and the best interest of the child’s tribe;

(H) A statement as to basis for the customary adoption supported by a home study, medical doctor, psychiatric doctor, child protection worker, family member and/or psychological reports or testimony;

(I) A statement that no similar action is pending in a tribal or state court having jurisdiction over the child.

(2) The petition shall be filed with the clerk of court, with copies served, by the petitioner, on the child welfare coordinator; appropriate family members, if any; caretaker, if any; and appropriate agencies of the Band which may have an interest in the proceeding or be of assistance to the Court in adjudicating the matter. The petition shall be served in the manner provided for in the Bad River Rules of Civil Procedure.

(d) Notice of Hearing on Petition for Customary Adoption. Upon the filing of a petition seeking an order for a customary adoption o a minor child, the Clerk of Court shall schedule a hearing to be held and shall cause written notice of such hearing to be served upon the petitioner; the child’s tribe; appropriate family members, if any; caretaker, if any; and appropriate agencies of the Band which my either have an interest in the proceedings or be of assistance to the court in adjudicating the matter. Such notice shall be served in the manner provided for in Bad River Tribal Court Code, Section 1.11.040.

(e) Hearing on Petition for Customary Adoption

(1) Attendance at hearing.

(a) The child who is the subject of a petition for customary adoption, agencies, petitioner and any appropriate family members including siblings may be present at the hearing in person or by telephone

(b) The petitioner shall be present at the hearing. The petitioner’s failure to appear shall be grounds for dismissal of the petition.

(2) Conduct of hearing.

(a) The court shall inform the parties of their rights under this code of the nature and consequences of the proceedings.

(b) The court shall further inform all other parties of their rights under the Tribal Code and pursuant to the Indian Civil Rights Act, 25 U.S.C., Section 1301-1303 (1968), as amended, including the right to summon and cross-examine witnesses.

(d) The burden of proving the allegation of the petition shall be upon the petitioner and the standard of proof shall be clear and convincing evidence.

(e) The court may continue the hearing, upon a showing of good cause, at the request of any party to the proceeding and enter such temporary orders, if any, as may be deemed just and reasonable to carry out the purposes of this Section.

(f) Final Order for Customary Adoption

If the court determines that it is in the best interests of the child and the child’s tribe, it shall issue a final order for a customary adoption. Such an order may include, but is not limited, to the following:

A statement that the child has been adopted by the petitioner(s) and that the parent-child bond is hereby established and that all of the rights and responsibilities of that relationship shall exist upon the entry of such a final order.

(g) Certification of a Customary Adoption

(1) A customary adoption, conducted in a manner consistent with this Section is a long-established, continued, reasonable process and considered by the people of the Bad River Band to be binding and authentic, and may be certified by the Children's Court as having the same effect as an adoption order issues by this court so long as it is in the best interest s of the child and the child's tribe.

(2) A decree certifying a customary adoption has the same effect as a decree or final order of customary adoption issued by this court.

1.25.270 Ineligible Children

(a) Any child who does not fall within the definition of "child" under Section 1.25.080(a), or whose tribe has objected to jurisdiction under Section 1.25.070, shall be subject to this chapter only if present on the Bad River Reservation and only for the following purposes:

(1) Taking into custody for the purpose of protecting the ineligible child from imminent physical or emotional harm,

(2) Making emergency placement necessary to protect the child,

(3) Referral or placement to an appropriate tribal, state, or other child welfare agency.

(b) A report of the conditions requiring action under subsection (a) shall be filed immediately with the Ashland County Department of Social Services.

1.25.280 Indian Child Welfare Act

(a) The child welfare coordinator is designated as agent for service of notices concerning child welfare proceedings as provided under the Indian Child Welfare Act.

(b) Upon receipt of such notice, the child welfare coordinator may consult with such tribal staff as may be necessary to determine the eligibility of the child named in such notices.

(c) Upon a determination that the notice received concerns a child defined under this Code, the child welfare coordinator shall consult with the Children's Court, tribal attorney, and Child Welfare Committee for the purpose of determining whether to intervene or seek transfer of the proceeding to the Children's Court.

(d) The child welfare coordinator shall determine whether to seek transfer, which determination, upon petition or motion of a person with an interest in the child, may be reviewed and reversed by the Children's Court.

(e) In any non-tribal proceeding, where transfer of jurisdiction is denied or not sought, the child welfare coordinator shall maintain a record of all information gathered, actions taken and documents received.

1.25.290 Child Welfare Coordinator

(a) Duties and authority. The child welfare coordinator shall have the following authority and duties:

(1) To represent the Tribe in all tribal proceedings concerning the child under this code,

(2) To represent the Tribe in proceedings concerning the welfare of any child as defined under this code in any foreign court or agency proceeding,

(3) To maintain records and establish procedures to maintain confidentiality of such records,

(4) To negotiate agreements for services with local, state, or federal agencies, subject to Tribal Council review and approval,

(5) To establish procedures for compliance with duties as required under this code,

(6) To share information for statistical or service purposes in conformity with agreements entered into,

(7) To receive and administer guardianship and custody of children under this chapter.

(8) To make such reports as may be required to the Tribal Council or its designee, provided that no such report that becomes a part of the Tribal public record shall contain any identifying information concerning the child or the child's parents except as permitted by the Children's Court.

(9) To receive as the Tribe's agent, notifications under sec. 48.981, Wis. Stats., and to maintain the confidentiality of such records as required by law.

(b) Immunity for acts and omissions. No liability shall attach to the child welfare coordinator for statements, acts, or omissions while in the course of activities defined under this code.

1.25.300 Child Welfare Committee

(a) There is hereby established a Child Welfare Committee, composed of three persons designated by the Tribal Council in executive session who shall establish procedures and guidelines for the conduct of committee business. The child welfare coordinator, tribal attorney, and other staff aides designated by the committee shall serve in advisory capacities to the committee, as requested by the committee.

(b) The Child Welfare Committee shall have the authority to meet, consider the conditions of a child alleged to be in need of care, and determine whether a case commenced in another jurisdiction should be transferred to children's court or whether the Tribe should intervene in the proceeding in the other jurisdiction.

(c) By this chapter and by the resolution adopting this chapter, the Child Welfare Committee is delegated the Tribal Council's authority under 25 U.S.C. sec. 1915(c) to establish in individual cases a different order of preference than that set forth in 25 U.S.C. sec. 1915 (a) and (b).

1.25.310 Right of Access to Records

Any party deemed appropriate by the Court, and the child who has been the subject of the termination of parental rights proceeding, suspension of parental rights proceeding, adoption proceeding or a customary adoption proceeding, has the right, upon reaching the age of majority, to review all the court’s file on these matters subject to redaction of names or the rights of confidentiality or some documents under federal or tribal law.

1.25.320 Severability

If any provision of this Chapter, or the application thereof, to any person is held invalid, such invalidity shall not affect the provisions or application of this Chapter which can be given effect without the invalid provision, and to this end the provisions of this Chapter are declared severable.

Chapter 1.26 Marriage

1.26.010 Applicability

(a) This chapter applies to marriages performed on the Reservation, in which one or both parties to the marriage is a member of the Tribe.

(b) The procedures set forth herein shall be exclusive as to any marriage performed on the reservation in which both parties are members of the Tribe.

(c) The procedures set forth herein shall be concurrent with the procedures established by the laws of the State of Wisconsin as to any marriage performed on the reservation in which one party is not a member of the Tribe. The application for a license under this chapter constitutes the non-member's consent to the Tribe's jurisdiction to grant such a license.

1.26.020 A Civil Contract

Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.

1.26.030 Marriageable Age; Who May Contract

(a) Every person who has attained the age of 18 years may marry if otherwise competent.

(b) If a person is between the age of 16 and 18 years, a marriage license may be issued with the written consent of the person's parents, guardian, legal custodian or parent having the actual care, custody and control of the person. The written consent must be given before the clerk of court under oath, or certified in writing and verified by affidavit (or affirmation) before a notary public or other official authorized to take affidavits. The written consent shall be filed with the clerk of court at the time of application for a marriage license. If there is no guardian, parent or custodian or if the custodian is an agency or department, the written consent may be given, after notice to any agency or department appointed as custodian and hearing proper cause shown, by the court having probate jurisdiction.

1.26.040 Who Shall Not Marry; Divorced Persons

(a) No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood. A marriage may not be contracted if either party has such want of understanding renders him or her incapable of assenting to marriage.

(b) It is unlawful for any person, who is or has been a party to any action for divorce in any court to marry again until 6 months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of 6 months from the date of the granting of judgment of divorce shall be void.

1.26.050 Marriage License; by Whom Issued

No persons to whom this chapter is applicable under Section 1.26.010(b) may be joined in marriage within the Reservation until a marriage license has been obtained for that purpose from the Clerk of Court. No persons to whom this chapter is applicable under Section 1.26.010(c) may be joined in marriage within the Reservation until a marriage license has been obtained for that purpose from the Clerk of Court or the Ashland County Clerk.

1.26.060 Application for Marriage License

No person shall receive a marriage license except upon proper application upon forms provided by the Clerk of Court.

1.26.070 Fee

No license shall be issued unless a fee of $25.00 is paid by the applicants. The fee shall be deposited in the Tribal Court Fees and Collections Account.

1.26.080 Identification of Parties; Statement of Qualifications

(a)(1) No applications for a marriage license may be made by persons lawfully married to each other and no marriage license may be issued to such persons.

(2) Paragraph (a)(1) does not apply to persons whose marriage to one another is void under Section 1.26.040(b) and who intend to intermarry under 765.21, Wis. Stats.

(b) No marriage license may be issued unless the application for it is subscribed by the parties intending to intermarry and is filed with the Clerk of Court.

(c) Each party shall present satisfactory, documentary proof of identification and residence and shall swear (or affirm) to the application before the Clerk of Court. The application shall contain such informational items as is also required by the Wisconsin Department of Health and Social Services. Each applicant under 30 years of age shall exhibit to the Clerk a certified copy of a birth certificate, and any applicants shall submit a copy of any judgments or a death certificate affecting the marital status. If such certificate of judgment is unobtainable, other satisfactory documentary proof of the requisite facts therein may be presented in lieu thereof. Whenever the Clerk is not satisfied with the documentary proof presented, he or she shall submit the same, for an option as to the sufficiency of the proof, to the tribal court.

1.26.090 Objection to Marriage

(a) If any parent, grandparent, child or natural guardian of a minor applicant for a marriage license, any brother, sister or guardian of either of the applicants for a marriage license or either of the applicants, the Tribal Court believes that the statements of the application are false or insufficient, or that the applicants or either of them are incompetent to marry, that person may file with the tribal court a petition under oath, setting forth the grounds of objection to the marriage and asking for an order requiring the parties making such application to show cause why the marriage license should not be refused. Whereupon, the court, if satisfied that the grounds of objection are prima facie valid, shall issue an order to show cause as aforesaid, returnable as the court directs, but not more than 14 days after the date of the order, which shall be served forthwith upon the applicants for the marriage license residing in the state, and upon the clerk and shall operate as a stay upon the issuance of the marriage license until further ordered; if either or both of the applicants are nonresidents of the state the order shall be served forthwith upon the nonresident by publication once in the Ashland Daily Press and by mailing a copy thereof to the nonresident at the address contained in the application.

(b) If, upon hearing, the court finds that the statements in the application are willfully false or insufficient, or that either or both of said parties are not competent in law to marry, the court shall make an order refusing the marriage license. If the falseness or insufficiency is due merely to inadvertence, then the court shall permit the parties to amend the application so as to make the statements therein true and sufficient, and upon application being so amended, the marriage license shall be issued. If any party is unable to supply any of the information required in the application, the court may, if satisfied that such inability is not due to willfulness or negligence, order the marriage license to be issued notwithstanding such insufficiency. The costs and disbursements of the proceedings under this section shall rest in the discretion of the court, but none shall be taxed against any district attorney or family court commissioner acting in good faith.

1.26.100 - Marriage License, When Authorized; Corrections; Contents

(a) If all the provisions of this chapter are complied with, and if there is no prohibition against or legal objection to the marriage, the clerk shall issue a marriage license. With each marriage license the clerk of court shall provide a pamphlet describing the causes and effects of fetal alcohol syndrome. After the application for the marriage license the clerk shall, upon the sworn statement of either the applicants, correct any erroneous, false or insufficient statement in the marriage license or in the application therefor which shall come to the clerk's attention prior to the marriage and shall show the corrected statement as soon as reasonably possible to the other applicant.

(b) The marriage license shall authorize the marriage ceremony to be performed on the Reservation. The officiating person shall determine that the parties presenting themselves to be married are the parties named in the marriage license. If aware of any legal impediment to such marriage, the person shall refuse to perform the ceremony. The issuance of a marriage license shall not be deemed to remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal, and the marriage license shall contain a statement to that effect.

1.26.110 Form of Marriage Document

The marriage document shall contain such informational items as the Wisconsin Department of Health and Social Services determines are necessary and shall agree in the main with the standard form recommended by the federal agency responsible for national vital statistics. It shall contain a notification of the time limits of the authorization to marry, a notation that the issue of the marriage license shall not be deemed to remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal, and the signature of the clerk of court, who shall acquire the information for the marriage document and enter it in its proper place when the marriage license is issued.

1.26.120 Form of Marriage Document When Solemnized by Parties

If the marriage is to be solemnized by the parties without an officiating person, as provided by Section 1.26.130(d) the marriage document shall contain all those items and notations required by 126.13.

1.26.130 Marriage Contract, How Made; Officiating Person

Marriage may be validly solemnized and contracted on this Reservation only after a marriage license has been issued therefor, and only in the following manner: by the mutual declarations of the 2 parties to be joined in marriage, made before a duly authorized officiating person and in the presence of at least 2 competent adult witnesses other than such officiating person, that they take each other as husband and wife. The following are duly authorized to be officiating persons:

(a) Any ordained clergyman of any religious denomination or society who continues to be such ordained clergyman;

(b) Any licentiate of a denominational body or an appointee of any bishop serving as the regular clergyman of any church of the denomination to which the clergyman belongs, if not restrained from doing so by the discipline of the church or denomination;

(d) The 2 parties themselves, by such mutual declarations, in accordance with the customs, rules and regulations of any religious society, denomination or sect to which either of said parties may belong;

(e) Any tribal judge, judge of a court of record or a reserve judge appointed under Wisconsin law.

(f) Any family court commissioner or court commissioner appointed under Wisconsin law.

1.26.140 Nonresident Officiating Person; Sponsorship

Any clergyman, licentiate or appointee named in Section 1.26.080 who is not a resident of Wisconsin may solemnize marriages in this state if he or she possess at the time of the marriage a letter of sponsorship from a clergyman of the same religious denomination or society who has a church in this state under his or her ministry.

1.26.150 Delivery and Filing of Marriage Document

The marriage document, legibly and completely filled out with unfading black ink, shall be returned by the officiating person, or in the case of marriage ceremony performed without an officiating person, then by the parties to the marriage contract, or either of them, to the clerk of court within 3 days after the date of the marriage, who shall forthwith file the completed marriage document with the Enrollment office and a copy of the same within the State of Wisconsin Department of Health and Social Services Bureau of Vital Statistics.

1.26.160 Records and Blanks

The clerk shall keep among the records in the office a suitable book called the marriage license docket and shall enter therein a complete record of the applications for and the issuing of all marriage licenses, and of all other matters which the clerk is required by this chapter to ascertain relative to the rights of any person to obtain a marriage license. An application may be recorded by entering into the docket the completed application form, with any portion collected only for statistical purposes removed. The marriage license docket shall be open for public inspection or examination at all times during office hours.

1.26.170 Unlawful Marriages Void; Validation

All marriages hereafter contracted in violation of this chapter shall be void, except as provided in Sections 126.18 and 126.19. The parties to any such marriage may validate the marriage by complying with the requirements of this chapter as follows:

(a) At any time, if the marriage is declared void under Sections 126.03 or 126.11.

(b) No earlier than 6 months after the divorce judgment is granted, if the marriage is declared void under 126.04(b).

1.26.180 Immaterial Irregularities as to Authority of Person Officiating

No marriage hereafter contracted shall be void by reason of want of authority or jurisdiction in the officiating person solemnizing such marriage, if the marriage is in other respects lawful, and is consummated with the full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

1.26.190 Immaterial Irregularities Otherwise

No marriage hereafter contracted shall be void by reason of any informality or irregularity of form in the application for the marriage license or in the marriage license itself, or the incompetency of the witnesses to such marriage or because the marriage may have been solemnized more than 30 days after the date of the marriage license, if the marriage is in other respects lawful and is consummated with the full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. Where a marriage has been celebrated in one of the forms provided for in Section 1.26.110 and the parties thereto have immediately thereafter assumed the habit and repute of husband and wife, and having continued the same uninterruptedly thereafter for the period of one year, or until the death of either of them, it shall be deemed that a marriage license has been issued as required by this chapter.

1.26.200 Recognition of Previous Indian Traditional Marriages

All marriages heretofore consummated whether according to state law or tribal custom are declared valid subject to annulment under applicable law. Cohabitation without solemnization by a third party is not recognized as constituting a traditional marriage.

1.26.210 Delayed Registration of Previous Indian Traditional Marriages

(a) Both parties to an Indian traditional marriage heretofore consummated, or the surviving party if the other is deceased, may petition the tribal court for an order causing the marriage to be registered.

(b) The petitioner or petitioners shall file and serve a written petition stating under oath the names of the parties to the marriage, their dates of birth, the date and place of marriage, and the name and address, if known, of the third party solemnizing the marriage.

(c) Notice of the time, place, and date of hearing on the petition, together with a copy of the petition, shall be served upon all interested parties. Interested parties shall include the heirs of both parties and any other putative spouses. Service may be personal or by certified mail, return receipt requested.

(d) The petitioners shall bear the burden of proving by a preponderance of the evidence that the parties were parties to a traditional marriage.

1.26.220 Indian Traditional Marriages

All marriages hereafter must comply with the provisions of this chapter.

1.26.230 Removal of Impediments to Subsequent Marriage

If a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract in accordance with Section 1.26.110 and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, or that the former marriage had been annulled, or dissolved by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to such former marriage, if they continue to live together as husband and wife in good faith on the part of them, be held to have been legally married from and after the removal of such impediment and the issue of such subsequent marriage shall be considered as the marital issue of both parties.

1.26.240 Penalties

(a) The following shall be subject to a civil forfeiture not less than $100 nor more than $1,000:

(1) False statement. Any person who in any affidavit or statement made under this chapter willfully and falsely swears, or who procures another to swear falsely in regard to any material fact relating to the competency of either or both of the parties applying for a marriage license, or as to the ages of such parties, if minors, or who falsely pretends to be the parent or guardian having authority to give consent to the marriage of such minor.

(2) Unlawful issuance of marriage license. Any clerk who knowingly issues a marriage license contrary to or in violation of this chapter.

(3) False solemnization of marriage. Any person, not being duly authorized by this chapter who intentionally undertakes to solemnize a marriage on the Reservation or any person who intentionally participates in or in any way aids or abets any false or fictitious marriage.

(b) The following shall be subject to a civil forfeiture not less than $100 or more than $500:

(1) Unlawful solemnization of marriage. Any officiating person who solemnizes a marriage unless the contracting parties have first obtained a proper marriage license as heretofore provide; or unless the parties to such marriage declare that they take each other as husband and wife; or without the presence of 2 competent adult witnesses; or solemnizes a marriage knowing of any legal impediment thereto; or solemnizes a marriage more than 30 days after the date of the marriage license, or falsely certifies to the date of a marriage solemnized by the officiating person.

(2) Unlawful solemnization by parties. Where a marriage is solemnized without the presence of an officiating person if the parties to such marriage solemnize the same without the presence of 2 competent adult witnesses or more than 30 days after the date of the license; or falsely certify to the date of such marriages.

(1) Failure to file marriage certificate. Every officiating person, or persons marrying without the presence of an officiating person, who neglect or refuse to transmit the original marriage certificate, solemnized by him or them, to the clerk of court within 3 days after the date of the marriage.

(2) Violations relating to records. Any clerk who refuses or neglects to enter upon the marriage license docket a complete record of each application, and of each marriage license issued from the clerk's office, immediately after the same has been made or issued, as the case may be, or fails to keep such marriage license docket open for inspection or examination by the public during office hours, or prohibits or prevents any person from making a copy or abstract of the entries in the marriage license docket.

(d) The following shall be subject to a civil forfeiture not less than $10 nor more than$50:

(1) Other violations. Any person violating any provision of this chapter for which no other penalty is provided.

1.26.250 Definitions

(a) "Enrollment Office" means the Bad River Tribal Enrollment office.

(b) "Clerk" means the Tribal Clerk of Court.

(d) "Reservation" means the Bad River Reservation.

(e) "Tribal Court" means the Tribal Court of the Bad River Tribe.

Chapter 1.27 Dissolution of Marriage

1.27.010 Applicability

(a) This chapter applies to dissolutions of marriage and legal separations of marriage performed on the Reservation, in which one or both parties to the marriage is a member of the Bad River Tribe, or to marriage performed in another jurisdiction in which both parties are members of the Bad River Tribe, or a marriage performed in another jurisdiction in which one party is a member of the Bad River Tribe and the party filing the action has been a resident within the exterior boundary of the Bad River Reservation for a period of at least 60 days prior to the commencement of the dissolution action.

(b) The procedures set forth herein shall be exclusive as to any dissolution of marriage and/or legal separation in which one or both parties is a member of the Bad River Tribe.

(c) The procedures set forth herein shall be concurrent with the procedures established by the laws of the Bad River Tribal Court and the State of Wisconsin where applicable, in which one party is a non-member of the Bad River Tribe. The signed Petition by a non-member for a dissolution of marriage under this chapter constitutes the non-member's consent to Bad River Tribe's jurisdiction to grant a divorce.

1.27.020 Definitions

Tribal Court - means the Bad River Tribal Court.

Dissolution of Marriage - means the legal termination of a marriage between a husband and wife.

Proceeding - means legal process and shall be entitled "In Re the Marriage of __________ and _____________." A custody or support proceeding shall be entitled "In Re the (Custody) (Support) of ________________________."

Irretrievably broken - means the determination that there is no reasonable prospect for reconciliation.

Joinder of Parties - means the uniting of two or more persons as co-plaintiffs or as co-defendants in one suit.

Maintenance/Support - means the act of maintaining, keeping up, support; livelihood; means of sustenance.

Final Decree - means a final decision, one which leaves nothing open to further dispute and which sets at rest the cause of action between parties.

Special Master - means a court appointed person assigned to complete a specific task on behalf of the Court in a case.

1.27.030 Dissolution of Marriage: Findings Necessary

The Court shall enter a Decree of Dissolution of Marriage if it finds each of the following:

(a) That one of the parties at the time the action was commenced was domiciled in Ashland County for a period at least thirty (30) days, and a resident of the State of Wisconsin for not less than six months.

(b) That the marriage was irretrievably broken.

(c) The Court may consider, approve and make provision for child custody, the support of any, natural or adopted, child common to the parties of the marriage entitled to support, the maintenance of either spouse and the disposition of property.

1.27.040 Decree of Legal Separation; Findings Necessary

The Court shall enter a Decree of Legal Separation if it finds each of the following:

(a) That one of the parties at the time the action commenced was domiciled in Ashland County for a period of at least ninety days and a resident of the State of Wisconsin for six months.

(b) The marriage is irretrievably broken.

(c) The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, the Court shall upon one of the parties meeting the required domicile for dissolution of marriage, direct that the pleadings be amended to seek a dissolution of the marriage.

(d) The Court may consider, approve or make provisions for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse and the disposition of the property.

1.27.050 Annulment

No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage. A court may annul a marriage entered into under the following circumstances:

(a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of age, because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage. Suit may be brought by either party, or by the legal representative of a party lacking the capacity to consent, no later than one year after the petitioner obtained knowledge of the described condition.

(b) A party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity. Suit may be brought by either party no later than one year after the petitioner obtained knowledge of the incapacity.

(c) A party was 16 or 17 years of age and did not have the consent of his or her parent or guardian or judicial approval, or a party was under 16 years of age. Suit may be brought by the under-aged party or a parent or guardian at any time prior to the party's attaining the age of 18 years, but a parent or guardian must bring suit within one year of obtaining knowledge of the marriage.

(d) The marriage is prohibited by the laws of the State of Wisconsin or the Tribe. Suit may be brought by either party within 10 years of the marriage, except that the 10 year limitation shall not apply where the marriage is prohibited because either party has another spouse living at the time of the marriage and the impediment has not been removed as follows:

If a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, or that the former marriage had been annulled, or dissolved by a divorce, or without knowledge of such former marriage, if they continue to live together as of the other party to such former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment and the issue of such subsequent marriage shall be considered as the marital issue of both parents.

1.27.060 Pleadings; Contents; Defense; Joinder of Parties

(a) Either or both parties may petition the court for Dissolution of Marriage or Legal Separation. The petition shall allege that the marriage is irretrievably broken and shall set forth:

(1) The age, occupation and address of each party and his/her length of domicile in Ashland County.

(2) The date of the marriage and the place at which it was performed.

(3) The names, ages and addresses of all living children, natural or adopted, common to the parties and whether the wife is pregnant.

(4) The details of any agreements between the parties as to support, custody and visitation of the children and maintenance of a spouse.

(5) The relief sought.

(6) The only defense to a Petition for the Dissolution of a marriage or Legal Separation shall be that the marriage is not irretrievably broken.

(7) The Court may join additional parties necessary for proper disposition of the matter.

1.27.070 Temporary Order or Preliminary Injunction; Effect

(a) In a proceeding for Dissolution of marriage or for Legal Separation, or for maintenance or support following Dissolution of Marriage, either party may move for temporary maintenance or temporary support of a child, natural or adopted, common to the parties entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.

(b) As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the Court to issue a preliminary injunction for any of the following relief:

(1) Restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures made after the order is issued.

(2) Enjoining a party from molesting or disturbing the peace of the other party or of any child.

(3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm may otherwise result.

(4) Enjoining a party from removing a child from the jurisdiction of the Court.

(5) Providing other injunctive relief proper in the circumstances.

(c) The Court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed. No bond shall be required unless the Court deems it appropriate.

(d) On the basis of the showing made, and in conformity with sections 127.03, 127.04, and 127.05, the Court may issue a preliminary injunction and an order for temporary maintenance or support in amounts and on terms just and-proper in the circumstance.

(e) A temporary order or preliminary injunction:

(1) Does not prejudice the rights of the parties or any child to be adjudicated at the subsequent hearings in the proceedings.

(2) May be revoked or modified before final decree on a showing by affidavit of the facts necessary to modification of a final decree.

(3) Terminates when the final decree is entered or when the Petition for Dissolution of Marriage or Legal Separation is dismissed.

1.27.080 Irretrievable Breakdown; Finding

(a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it or if the parties have voluntarily lived apart for at least 12 months immediately prior to the Commencement of the action and at lease one party has stated under oath that the marriage is irretrievably broken, the Court, after hearing, shall make a finding whether the marriage is irretrievably broken.

(b) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the Court shall, upon hearing, consider all relevant factors as to the prospect of reconciliation, and shall either:

(1) Make a finding whether or not the marriage is irretrievably broken; or

(2) Continue the matter for further hearing, not more than sixty days later. The Court, at the request of either party, or on its own motion may order a conciliation conference. Upon review of the evidence and testimony, the Court shall make a finding whether or not the marriage is irretrievably broken.

(c) A finding that the marriage is irretrievably broken is a determination that there is no reasonable prospect or reconciliation.

1.27.090 Separation Agreement; Effect

(a) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties shall enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody and visitation of their children.

(b) In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody and visitation of children, are binding upon the parties unless the Court finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the Court, that the separation agreement is unfair.

(c) Upon review, if the Court finds the separation agreement unfair as to disposition of property or maintenance, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance. In separating marital property, the Court shall assign each spouse's sole and separate property to him/her. It shall also divide the Community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct. For purposes of this section only, property acquired by either spouse outside the Community shall be deemed to be community property if said property would have been community property if acquired in this Community. Nothing in this section shall present the Court from considering excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

(d) If the Court finds that the separation agreement is not unfair the court shall enter the document in to the record and upon final disposition order the parties to abide by the agreement. Section

1.27.100 Maintenance: Computation Factors

(a) In a proceeding for Dissolution of Marriage or Legal Separation, the Court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including property apportioned to him or her, to provide for his or her. reasonable needs; and

(2) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home.

(b) The maintenance order shall be in such amounts and for such periods of time as the Court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

(1) The financial resources of the party seeking maintenance, including marital property apportioned to him or her and his or her ability to meet his or her needs independently.

(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.

(3) The standard of living established during the marriage.

(4) The duration of the marriage.

(5) The age and the physical and emotional condition of the spouse seeking maintenance.

(6) The ability of the spouse from whom maintenance is sought to or her needs while meeting those of the spouse seeking maintenance.

(7) Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

(8) The ability of the spouse seeking maintenance to earn a living separate from the other spouse.

1.27.110 Child Support; Factors

(a) In a proceeding for Dissolution of Marriage, Legal Separation, Maintenance, or Child Support, the Court may order either or both parents owing a duty of support to a child, born to or adopted by the parents, to pay an amount reasonable and necessary for his support, without regard to marital misconduct after considering all relevant factors, including:

(1) The financial resources and needs of the child.

(2) The financial resources and needs of the custodial parent.

(3) The standard of living the child would have enjoyed had the marriage not been dissolved.

(4) The physical and emotional condition of the child, and his educational needs.

(5) The financial resources and needs of the non-custodial parent.

(6) Excessive and abnormal expenditures, destruction, concealment, fraudulent disposition of community, joint tenancy or other property held in common.

(b) In the case of a mentally or physically disabled child, if the Court, after considering the factors set forth in Subsection (a) deems it appropriate, the Court may order support to continue past the age of emancipation and to paid to the custodial parent, guardian or child.

1.27.120 Representation of Child by Counsel; Fees

The Court may appoint an attorney or any other person to represent the interests of a minor or dependent child with respect to his support, custody and visitation. The Court may enter an Order for costs, fees and disbursements in favor of the child's representative. The order may be made against either or both parents.

1.27.130 Payment of Maintenance or Support to Courts; Records

(a) Upon its own motion or upon motion of either party, the Court may order at any time that maintenance or support payments be made to the Clerk of Court for remittance to the person entitled to receive the payments.

(b) The Clerk of Court shall maintain records listing the amount of payments, the date payments are required to be made, and the names and addresses of the parties affected by the order.

(d) If the person obligated to pay support has left or is beyond the jurisdiction of the Court, any party may institute any other proceeding available under the laws of this Community for enforcement of the duties of support and maintenance.

1.27.140 Assignments

In the event a person obligated to pay child support is in arrears for at two months or more, the Court may order the person obligated to pay child support to make an assignment of a part of his periodic earnings or trust income to the person entitled to receive the payments. The assignment is binding on the employer, trustee, or other payor of the funds two weeks after service upon such person of notice that the assignment has been made. The payor shall withhold the earns or trust income payable to the person obligated to support the amount specified in the assignment and shall transmit the payments to the Clerk of the Court. The payor may deduct from each payment a sum not exceeding five dollars as reimbursements for costs. An employer shall not discharge or otherwise discipline an employee solely as a result of a wage or salary assignment authorized by this section.

1.27.150 Costs and Expenses

The Court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter. For the purpose of this section costs and expenses may include fee, of a lay advocate or attorney, deposition costs and such other reasonable expenses as the Court finds necessary to the full and proper presentation of the action, including any appeal. The Court may order all such amounts paid directly to the attorney or lay advocate, who may enforce the order in his name with the same force and effect, and in the same manner, as if the order had been made on behalf of any party to the action.

1.27.160 Decree; Finality; Restoration of Maiden Name

(a) A Decree of Dissolution of Marriage or of Legal Separation is final when entered, subject to the right of appeal. An appeal from the Decree of Dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, and either of the parties may remarry pending appeal. An order directing payment of money for support or maintenance of the spouse or the minor child or children, shall not be suspended or the execution thereof stayed pending the appeal.

(b) The Court may upon hearing within six months after the entry of a Decree of Legal Separation, convert the decree to a Decree of Dissolution of Marriage.

(c) The Court shall upon motion of either party after expiration of six months from the entry of a legal separation, convert the decree to a Decree of Dissolution of Marriage.

(d) Upon request by a wife whose marriage is dissolved or declared invalid, the Court shall order her maiden name or a former name restored.

1.27.170 Independence of Provisions of Decree or Temporary Order

If a party fails to comply with a provision of Decree or Temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended, but he/she may move the Court to grant an appropriate order.

1.27.180 Modification and Termination of Provisions for Maintenance, Support and Property Disposition

(a) Except as otherwise provided in subsection (e) of Section 1.27.070 the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances which are substantial and continuing. The provisions as to property disposition may not be revoked or modified, unless the Court finds the existence of conditions that justify the reopening of a judgment under the laws of this Community.

(b) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

(c) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of the minor child are not terminated by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment to the extent just and appropriate in the circumstances.

1.27.190 Jurisdiction; Commencement of Proceedings

(a) The Bad River Tribal Court is vested with jurisdiction to child custody matters by initial determination or by modification of the decree, if:

(1) The Bad River Reservation or Ashland County is the domicile of the child at the time of commencement of the proceeding, or had been the child's domicile within six months before commencement of the proceeding and the child is absent from Ashland County because of his/her removal or retention by a person claiming his/her custody or for any other reason, and a parent or person acting as parent continues to live in this/her Community; or

(2) It is in the best interest of the child that this Court assume jurisdiction because the child and his/her parents, or the child and at least one contestant, have a significant connection with this Community, and there is available in his/her Community substantial evidence concerning the child's present or future care, protection, training and personal relationships; or

(3) The child is physically present on the Bad River Reservation or Ashland County and has been abandoned or it is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or

(4) No other Court outside this Reservation has jurisdiction under prerequisites substantially in accordance with Paragraph 1, 2, or 3, or another jurisdiction has declined to exercise its jurisdiction on the ground that this Court is the more appropriate forum to determine custody of the child, and it is in his/her best interest that this/her Court assume jurisdiction

(b) Except under Paragraphs 3 and 4 of Subsection (a)this section, physical presence on this Reservation of the child or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a Court of the Community to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his/her custody.

(d) A child custody proceeding is commenced in the Tribal Court:

(1) By a parent, by filing a Petition:

(A) For the dissolution or legal separation; or

(B) For custody of the child; or

(2) By a person other than a parent, by filing a Petition for custody of the child, but only if he/she is not in the physical custody of one of his/her parents.

(A) For the dissolution or legal separation; or

(B) For custody of the child; or

(e) Notice of a child custody proceeding shall be given to the child's parent, guardian, and custodian, who may appear, be heard, and file a responsive pleading. The Court, upon a showing of good cause, may permit intervention of other interested parties.

1.27.200 Best Interest of Child; Modification of Decree; Fees

(a) The Court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child. The Court may consider all relevant factors, including:

(1) The wishes of the child's parent or parents as to his/her custody.

(2) The wishes of the child as to his/her custodian.

(3) The interaction and inter-relationship of the child with his/her parent or parents, his/her siblings, and any other person who may significantly affect the child's best interest.

(4) The child's adjustment to his/her home, school and community.

(5) The mental and physical health of all individuals involved.

(b) No motion to modify a custody decree may be made earlier than one year after its date, unless the Court permits it to be made on the basis of affidavit that there is reason to believe the child's a present environment may endanger seriously his/her physical, mental, moral or emotional health.

(c) Fees of attorneys or lay advocate and costs shall be assessed against a party seeking modification if the Court finds that the modification action is pursued in bad faith and/or constitutes harassment.

1.27.210 Temporary Orders

(a) A party to a custody proceeding may move for a temporary custody order. This motion must be supported by pleadings as provided in Section 1.27.060. The Court may award temporary custody under the standards of Section 1.27.110 after a hearing, or, if there is no objection, solely on the basis of the pleadings.

(b) If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child's custodian moves that the proceeding continue as a child welfare matter consistent with the Bad River Tribal Code and, after a hearing, that the circumstances of the parents and the best interests of the child require that a placement order is issued.

(c) If a placement proceeding commenced in the absence of a petition for dissolution of marriage or legal separation is dismissed, any temporary custody order thereby is vacated.

1.27.220 Interviews by Court: Professional Assistance

(a) The Court may interview the child in chambers to ascertain the child's wishes as to his/her custodian and as to visitation.

(b) The Court may seek the advice of professional personnel, whether or not employed by the Court on a regular basis. The advice given shall be in writing and shall be made available by the Court to counsel, upon request, under such terms as the Court determines. Counsel may examine as a witness any professional personnel consulted by the Court, unless such right is waived.

1.27.230 Investigations and Reports

(a) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the Court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by a social service agency, the staff of the juvenile court or any other person or agency appointed by the Court.

(b) In preparing his/her report concerning a child, the investigator may consult any person who may have information about the child or potential custodial arrangements.

(c) The Court shall mail the investigator's report to counsel of the parties at least ten days prior to the hearing, unless otherwise ordered by the Court. The investigator shall make available to counsel of the parties the names and addresses of all persons whom the investigator has consulted. Any party to the proceedings may call for examination of the investigator and any person whom he/she has consulted.

1.27.240 Custody Hearings: Priority; Costs; Record

(a) Custody proceedings shall receive priority in being set for hearing.

(b) The Court may impose as costs to the parties, the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the Court deems necessary to determine the best interest of the child.

(c) The Court shall determine questions of law and fact. If it finds that public hearing may be detrimental to the child's best interest, the Court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the work of the Court.

(d) If the Court finds that to protect the child's welfare, the record of any interview, report, investigation, or testimony in a custody proceeding should be kept secret, the Court may then make an appropriate order sealing the record.

1.27.250 Visitation Rights; Exception

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the Court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health.

(b) The Court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental moral or emotional health.

1.27.260 Judicial Supervision

(a) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing including his/her education, health, care and religious training, unless, upon motion by the noncustodial parent, the Court, after hearing, finds that in the absence of specific limitation of the custodian's authority, the child's physical health would be endangered or his/her emotional development significantly impaired.

(b) If both parents or all contestants agree to the order, or if the Court finds that the child's physical health would be endangered or his/her emotional development significantly impaired, the Court may order a social service agency to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out.

1.27.270 Affidavit; Contents

A party seeking a temporary custody order or modification of a custody decree shall submit an affidavit or verified petition setting forth detailed facts supporting the requested order or modification and shall give notice, together with a copy of his/her affidavit, or verified petition to other parties to the proceeding, who may file opposing affidavits. The Court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested order of modification should not be granted.

1.27.280 Investigations

If deemed necessary, by the Court, the Chief Judge of the Bad River Tribal Court shall appoint a Special Master or other person to carry out the following duties:

(a) Investigate the facts upon which to base warrants, subpoenas, or orders in actions or proceedings filed in or transferred to the conciliation division pursuant to the chapter.

(b) Bold conciliation conferences with parties to proceedings under this/her chapter and report the results of such proceedings to the Judge of the Tribal Court.

1.27.290 Subsequent Petition Filed Within One Year

Once a petition by either or both of the spouses has been filed pursuant to this chapter, the filing of any subsequent petition under such section within one year thereafter by either or both of the spouses shall not stay any action for dissolution of marriage or legal separation then pending, nor prohibit the filing of such action by either party. The filing of a subsequent petition by either or both of the spouses more than one year after the filing of any previous petition with such effect shall have the same effect toward staying any domestic relations action then pending and toward prohibiting the filing of any such action as provided in this chapter.

Chapter 1.28 Adult Guardianship

1.28.010 Jurisdiction in Tribal Court

Pursuant to the Bad River Tribal Constitution, Article VI Sections 1 (j) and (q), the Tribal Court shall have jurisdiction over all petitions for adult guardianship. A guardianship of the estate of any adult person, once granted shall extend to wherever any of his or her assets, whatever the nature, are located.

1.28.020 Voluntary Proceedings; Conservators

(a) Any adult member who believes that he or she is unable to properly manage his or property or income may voluntarily apply to the tribal court for appointment of a conservator of the estate. Upon receipt of the application the court shall fix a time and place for hearing the application and direct to whom and in what manner notice of the hearing shall be given.

(b) At the time of such hearing the applicant shall be personally examined and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated is suitable, the court may appoint the nominee as conservator and issue letters of conservatorship to the nominee upon the filing of a bond in the amount fixed by the court.

(c) A conservator shall have all the powers and duties of a guardian of the property of an incompetent person. The conservator's powers shall cease upon being removed by the court or upon death of the person whose estate is being conserved.

(d) Any person whose estate is under conservatorship may apply to the court at any time for termination thereof. Upon such application, the court shall fix a time and place for hearing and direct that 10 days notice by mail be given to the person's guardians, if any, the conservator and the presumptive heirs of the applicant. Upon such hearing, the court shall, unless it is clearly shown that the applicant is incompetent, remove the conservator and order the property restored to the applicant, or if the applicant so desires and the nominee is suitable, the court may appoint a successor conservator.

(e) If the court shall upon such hearing determine that the person whose estate is administered by a conservator may be incapable of handling his or her estate, the court shall order the conservatorship continued, or if the applicant so desires and the nominee is suitable, the court may appoint a successor conservator.

(f) Appointment of a conservator shall not be evidence of the competency or incompetency of the person whose estate is being administered.

(g) If an application for conservatorship is filed, the fee, to be determined by the court, shall be paid at the time of the filing of the inventory or other documents setting forth the value of the estate.

1.28.030 Incompetency; Appointment of Guardian

(a) Whenever it is proposed to appoint a guardian on the ground of incompetency a licensed physician or licensed psychologist, or both shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination. A copy of the statement shall be provided to the proposed ward, guardian ad litem and attorney. The person shall also be informed that he or she has right to remain silent and that the examiner is required to report to the court even if the person remains silent. The issuance of such a warning to the person prior to each examination establishes a presumption that the person understands that he or she need not speak to the examiner.

(b)(1)(A) The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of a guardian ad litem or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney or guardian ad litem, except if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be six in number. The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (a). The attorney or physician or psychologist at least 48 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

(B) If the person requests but is unable to obtain legal counsel, the court shall appoint legal counsel.

(2) If requested by the proposed ward or anyone on the proposed ward's behalf, the proposed ward has the right at his or her own expense, or if indigent at the expense of the tribe to secure an independent medical or psychological examination relevant to the issue involved in any hearing under this chapter, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

(3) The hearing on a petition which contains allegations that the person is refusing psychotropic drugs shall be held within 30 days after the date of filing of the petition, except that if a jury trial demand is filed the hearing shall be held within either 30 days after the date of filing of the petition or 14 days after the date of the demand for a jury trial, whichever is later. A finding by the court that there is probable cause to believe that the person is a proper subject for guardianship has the effect of filing a petition.

(4) Every hearing on a petition shall be open, unless the proposed ward or his or her attorney acting with the proposed ward's consent moves that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

(c) In a finding of limited incompetency, guardianship of the person shall be limited in accordance with the order of the court accompanying the finding of incompetence. If the proposed incompetent has executed a power of attorney for health care the court shall give consideration to the appointment of the health care agent for the individual as the individual's guardian. The court shall make a specific finding as to which legal rights the person is competent to exercise. Such rights include but are not limited to the right to vote, to marry, to obtain a motor vehicle operator's license or other state license, to hold or convey property and the right to contract. The findings of incompetence must be based upon clear and convincing evidence. The court shall determine if additional medical or psychological testimony is necessary for the court to make an informed decision respecting competency to exercise legal rights. The guardian, ward or any interested person may at any time file a petition with the court requesting a restoration of any such legal right, and specifying the reasons therefore. Such petition may request that a guardianship of the person be terminated and a guardianship of property be established.

(d) When it appears by clear and convincing evidence that the persons is incompetent, the court shall appoint a guardian.

(e)(1) If the court finds by clear and convincing evidence that the person is not competent to refuse psychotropic medication and the allegations are proven, the court shall appoint a guardian to consent to or refuse psychotropic medication on behalf of the person as provided in the court order under par. (b).

(2) In any case where the court finds that the person is not competent to refuse psychotropic medication and appoints a guardian to consent to or refuse psychotropic medication on behalf of the person, the court shall do all of the following:

(A) Order the appropriate mental health professional to develop or furnish, to provide to the ward, and to submit to the court, a treatment plan specifying the protective services, including psychotropic medication as ordered by the treating physician, that the proposed ward should receive.

(B) Review the plan submitted by the mental health professional and approve, disapprove or modify the plan.

(C) If the court modifies the treatment plan under sub. (b), the court shall order the mental health professional to provide the modified treatment plan to the ward.

(D) If the court modifies the treatment plan under sub. (b), the court shall order the appropriate mental health professional to provide the modified treatment plan to the ward.

(E) Order protective services.

(F) Order the appropriate mental health professional to ensure that protective services, including psychotropic medication, are provided in accordance with the approved treatment plan.

(f) If a person substantially fails to comply with the administration of psychotropic medication, if any, ordered under the approved treatment plan under sub. (e), the court may authorize the person's guardian to consent to forcible administration of psychotropic medication to the person, if all of the following occur before the administration:

(1) The Tribal Attorney or the person's guardian files with the court a joint statement by the guardian and the director or the designee of the director of the treatment facility that is serving the person a designated mental health professional stating that the person has substantially failed to comply. The statement shall be sworn to be true and may be based on the information and beliefs of the individuals filing the statement.

(2) Upon receipt of the joint statement of noncompliance, if the court finds by clear and convincing evidence that the person has substantially failed to comply with the administration of psychotropic medication under the treatment plan, the court may do all of the following:

(A) Authorize the person's guardian to consent to forcible administration by the treatment facility to the person, on an outpatient basis, of psychotropic medication ordered under the treatment plan.

(B) If the guardian consents to forcible administration of psychotropic medication as specified in sub. (a), authorize the sheriff or other law enforcement agency, in the county in which the person is found or in which it is believed that the person may be present, to take charge of and transport the person, for outpatient treatment, to an appropriate treatment facility.

(3) If the court authorizes the tribal police or other law enforcement agency to take charge of and transport the person as specified in par. (2)(B), a staff member of the treatment facility, tribal police department or other law agency enforcement and shall attempt to convince the person to comply voluntarily with the administration of psychotropic medication under the treatment plan.

(g) In appointing a guardian, the court shall take into consideration the opinions of the alleged incompetent and of the members of the family as to what is in the best interests of the proposed incompetent. However, the best interests of the proposed incompetent shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest. If the proposed incompetent has executed a power of attorney for health care the court shall give consideration the appointment of the health care agent for the individual as the individual's guardian.

(h) All court records pertinent to the finding of incompetency are closed but subject to access as determined by the court. The fact that a person has been found incompetent is accessible to any person who demonstrates to the court a need for that information.

(i) A finding of incompetency and appointment of a guardian under this subchapter is not grounds for involuntary protective placement.

1.28.040 Nomination; Selection of Guardians

The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following:

(a) Ability to properly care for ward.

(b) Knowledge and capacity to manage assets taking into account the scope of ward's estate.

1.28.050 Guardian Ad Litem in Incompetency Cases

(a) Appointment. The court shall appoint a guardian ad litem whenever it is proposed that the court appoint a guardian on the ground of incompetency, protectively place a person or order protective services.

(b) Qualifications. The guardian ad litem shall be admitted to practice by the Bad River Tribal Court. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.

(c) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the proposed ward or alleged incompetent as to guardianship, protective placement and protective services. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the proposed ward or alleged incompetent or the positions of others as the best interests of the proposed ward or alleged incompetent. The guardian ad litem has none of the rights or duties of a general guardian.

(d) General Duties. A guardian ad litem shall do all of the following:

(1) Interview the proposed ward or alleged incompetent and explain the applicable hearing procedure, the right to counsel and the right to request or continue a limited guardianship.

(2) Advise the proposed ward or alleged incompetent, both orally and in writing, of that person's rights to a jury trial, to an appeal, to counsel and to an independent medical or psychological examination on the issue of competency, at the Tribe's expense if the person is indigent.

(3) Request that the court order additional medical, psychological or other evaluation, if necessary.

(4) If applicable, inform the court that the proposed ward or alleged incompetent objects to a finding of incompetency, the present or proposed placement or the recommendation of the guardian ad litem as to the proposed ward's or alleged incompetent's best interests or that the proposed ward's or alleged incompetent's position on these matters is ambiguous.

(5) Present evidence concerning the best interests of the proposed ward or alleged incompetent, if necessary.

(6) Report to the court on any other relevant matter that the court requests.

(e) Duties in reviews. In any review of a protective placement or of a protect service order the guardian ad litem shall do all of the following:

(1) Interview the ward to explain the review procedure, the right to an independent evaluation, the right to counsel and the right to a hearing.

(2) Provide the information under par. (1), to the ward in writing.

(3) Secure an additional evaluation of the ward, if necessary.

(4) Review the annual report and relevant reports on the ward's condition and placement.

(5) Review the ward's condition, placement and rights with the guardian.

(6) If relevant, report to the court that the ward objects to the finding of continuing incompetency, the present or proposed placement, the position of the guardian or the recommendation of the guardian ad litem as to the best interests of the ward or if there is ambiguity about the ward's position on these matters.

(7) If relevant, report to the court that the ward requests the appointment of counsel or an adversary hearing.

(f) Communication to a jury. In jury trials the court or guardian ad litem may tell the jury that the guardian ad litem represents the interests of the proposed ward or alleged incompetent.

(g) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (a) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates, even if counsel has been appointed for the proposed ward or alleged incompetent. The court may extend that appointment, or reappoint a guardian ad litem whose appointment under this section has terminated, by an order specifying the scope of responsibilities of the guardian ad litem. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request that the court terminate any extension or reappointment. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal.

Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the person who the guardian ad litem is appointed for unless the court otherwise directs.

1.28.060 Duration of Guardianship; Review

(a) Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the incompetent, or until terminated by the court. The court shall make a specific finding of any rights which the individual is competent to exercise at the time.

(b) The court shall review and may terminate the guardianship of the person of an incompetent upon marriage to any person who is not subject to a guardianship.

(c) A ward, any interested person on the ward's behalf, or the ward's guardian may petition the court to have the guardian discharged and a new guardian appointed, or to have the guardian of the ward's property designated as a limited guardian.

(d) A ward, any interested person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency. Upon such a petition for review, the court shall conduct a hearing at which the ward shall be present and shall have the right to a jury trial, if demanded. The ward shall also have the right to counsel and the court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, counsel shall be provided at the expense of the tribe.

(e) After a hearing under sub. (d) or on its own motion, a court may terminate or modify a guardianship of an incompetent.

(f)(1) If the court appoints a guardian under this chapter the court shall do all of the following:

(A) Order the tribe's social service department to review, at least once every 12 months from the date of the appointment, the status of the person and file a written evaluation with the court, the person and the person's guardian. Guardianship and protective services orders for psychotropic medication shall be reviewed annually. The evaluation shall include a description of facts and circumstances that indicate whether there is a substantial likelihood that the person could function at a reasonable level if protective services, including psychotropic medication, were withdrawn. The evaluation shall also include recommendations for discharge or changes in the treatment plan or services, if appropriate.

(B) Annually, appoint a guardian ad litem to meet with the person and to review the evaluations under sub. (j). The guardian ad litem shall inform the person and the guardian of all of the following:

(i) The person's right to representation by full legal counsel under par. (f)(2).

(ii) The right to an independent evaluation under par. (f)(4) of the person's need for a guardian for the purpose of consenting to or refusing psychotropic medication and the need for and appropriateness of the current treatment or services.

(iii) The right to a hearing under par. (f)(5) on the need for a guardian for the purpose of consenting to or refusing protective services, including psychotropic medication, and the need for and appropriateness of the current treatment or services.

(2) The court shall ensure that the person is represented by full legal counsel if requested by the person, the guardian or the guardian ad litem.

(3) The guardian ad litem shall file with the court a written report stating the guardian ad litem's conclusions with respect to all of the following:

(A) Whether an independent evaluation should be conducted under par. (f)(4).

(B) Whether the person continues to be a proper subject for guardianship because the person is not competent to refuse psychotropic medication and/or protective services.

(D) Whether the person or the guardian requests a change in status, treatment plan or protective services.

(E) Whether a hearing should be held on the continued need for guardianship because a person is not competent to refuse psychotropic medication and/or protective services.

(4) Following review of the evaluation under par. (f)(1)(a)., and the guardian ad litem's report under par. (f)(3), the court shall order an independent evaluation of the person's need for continued guardianship and protective services or the appropriateness of the treatment plan or protective services, if requested by the person, the guardian or the guardian ad litem or if the court determines that an independent evaluation is necessary.

(5) The court shall order a hearing under this subsection upon request of the person, the guardian, the guardian ad litem or any interested person. The court may hold a hearing under this subsection on its own motion.

(6) The court shall do one of the following after holding a hearing under this subsection or, if no hearing is held, after reviewing the guardian ad litem's report and other information filed with the court:

(A) Order continuation of the guardianship without modification. The standard for continuation of protective services, including psychotropic medication, is a substantial likelihood, based on the person's treatment record, that the person could function at a reasonable level if protective services, including psychotropic medication, were withdrawn.

(B) Order continuation of the guardianship with modification of the protective services order.

(C) Terminate the guardianship and protective services order. A guardian of the estate appointed under this chapter for a married person may exercise with the approval of the court, except as limited under Section 1.28.130 any management and control right over the marital property or property other than marital property and any right in the business affairs which the married person could otherwise exercise if the person were not determined to be a proper subject for guardianship. Under this section, a guardian may consent to act together in or join in any transaction for which consent or joinder of both spouses is required or may execute a marital property agreement with the other spouse, but may not make amend or revoke a will.

(D) General duties. The guardian of the estate shall take possession of all of the ward's real and personal property, and of rents, income, issues and benefits therefrom, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof subject to such possession the title of all such estate and to the increment and proceeds thereof shall be in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to account for it faithfully, to perform all other duties required of the guardian by law and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto.

(g) Retention of assets.

(1) The guardian of the estate may, without the approval of the court, retain any real or personal property possessed by the ward at the time of appointment of the guardian or subsequently acquired by the ward by gift or inheritance so long as such retention constitutes the exercise of the judgment and care tinder the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

(2) The guardian of the estate may, with the approval of the court, after such notice as the court directs, retain any real or personal property possessed by the ward at the time of the appointment of the guardian or subsequently acquired by the ward by gift or inheritance for such period of time as shall be designated in the order of the court.

(h) Continuation of business. In all cases where the court deems it advantageous to continue the business of a ward, such business may be continued by the guardian of the estate on such terms and conditions as may be specified in the order of the court.

(i) Investments

(1) The guardian of the estate may, without approval of the court, invest and reinvest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in accordance with Wisconsin Statute Chapter 881.

(2) The guardian of the estate may, with the approval of the court, after such notice as the court directs, invest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in such real or personal property as the court determines to be in the best interests of the guardianship estate, without regard to Wisconsin Statute Chapter 881.

(3) No guardian shall lend guardianship funds to himself or herself.

(j) Sales and other dispositions.

(1) The guardian of the estate may, without approval of the court, sell any property of the guardianship estate acquired by the guardian pursuant to sub. (d),

(2) The court, on the application of the guardian of the estate or of any other person interested in the estate of any ward, after such notice if any, as the court directs, may authorize or require the guardian to sell, mortgage, pledge, lease or exchange any property of the guardianship estate upon such terms as the court may order, for the purpose of paying the ward's debts, providing for the ward's care, maintenance and education and the care, maintenance and education of the ward's dependents, investing the proceeds or for any other purpose which is in the best interest of the ward.

No guardian shall purchase property of the ward, unless sold at public sale with the approval of the court, and then only if the guardian is a spouse, parent, child, brother or sister of the ward or is a co-tenant with the ward in the property.

1.28.070 Fraud, Waste, Mismanagement

If the tribal court has reason to believe that any guardian within its jurisdiction has filed false inventory, claims property or permits others to claim and retain property belonging to the estate which he or she represents, is guilty of waste or mismanagement of the estate or is unfit for the proper performance of duties, the court shall appoint a guardian ad litem thus any minor or incompetent person interested and shall order the guardian to file the account. If upon the examination of the account the court deems it necessary to proceed further, a time and place for the adjustment and settlement of the account shall be fixed by the court, and at least 10 days notice shall be given to the guardian ad litem and to all persons interested. If upon the adjustment of the account, the court is of the opinion that the interests of the estate and of the persons interested require it, the guardian may be removed and another appointed.

1.28.080 Claims

(a) Payment. Every general guardian shall pay the just debts of the ward out the ward's personal estate and the income of the ward's real estate, if sufficient, and if not, then out of the ward's real estate upon selling the same as provided by law. But a temporary guardian shall pay the debts of his or her ward only on order of the court.

(b) Proceedings to adjust claims. The guardian or a creditor of any ward may apply to the court for adjustment of claims against the ward incurred prior to entry of the order appointing the guardian or the filing of a lis pendens as provided in Section 1.28.130. The court shall by order fix the time and place it will adjust claims and the time within which all claims must be presented or barred. Notice of the time and place so fixed and limited shall be given by publication. After the court has made the order no action or proceeding may be commenced or maintained in any court against the ward upon any claim of which the tribal court has jurisdiction.

1.28.090 Actions

The guardian shall settle all accounts of the ward and may demand, sue for, collect and receive all debts and claims for damages due him or her, or may, with the approval of the tribal court, compound and discharge the same, and shall appear for and represent his or her ward in all actions and proceedings except where another person is appointed for that purpose.

1.28.100 Compensation Allowed from Estate

Fees and expenses of guardian. Every guardian shall be allowed the amount of the guardian's reasonable expenses incurred in the execution of the guardian's trust including necessary compensation paid to attorneys, accountants, brokers and other agents and servants. The guardian shall also have such compensation for the guardian's services as the court, in which the guardian's accounts are settled, deems to be just and reasonable.

1.28.110 Accounting

(a) Annual reports. Every guardian, except a corporate guardian, shall, prior to April 15 of each year, file and account under oath specifying the amount of property received and held or invested by the guardian, nature and manner of the investment, and the guardian's receipts and expenditures during the preceding calendar year. When ordered by the court, the guardian shall within 30 days render and file a like account for any shorter term. In lieu of the filing of these accounts before April 15 of each year, the court may, by appropriate order upon motion of the guardian, direct the guardian of an estate to thereafter render and file the accountings within 60 days after the anniversary date of the guardian's qualification as guardian, with the accounting period from the anniversary date of qualification to the ensuing annual anniversary date. The guardian shall also report any change in the status of the surety upon the guardian's bond.

(b) Display of assets. Upon rendering the account the guardian shall produce for examination by the court, or some person satisfactory to the court, all securities, evidences of deposit and investments reported, which shall be described in the account in sufficient detail so that they may be readily identified. It shall be ascertained whether the securities, evidences of deposit and investments correspond with the account.

(c) Small estates. When the whole estate of a ward or of several wards jointly, under the same guardianship, does not exceed $1,000 in value, the guardian shall be required to render account only upon the termination of the guardian's guardianship, unless otherwise ordered by the court.

(d) Examination of accounts. The account shall be promptly examined under the court's direction and if it is not satisfactory it shall be examined on 8 days' notice and the court shall make such order thereon as justice requires notice to the guardian may be served personally or by certified mail as the court directs. When the examination of a guardian's account is upon notice a guardian ad litem of the ward may be appointed.

(e) Notice. No action by the court upon any account shall be final unless it is upon notice.

1.28.120 Petition for Placement of Assets in Trust

Upon petition by the guardian, a parent, the spouse, any issue or next of kin of any person, assets of the person may, in the discretion of the court and upon its order, after such notice as the court may require, be transferred to the trustee of an existing revocable living trust created by the person for the benefit of himself or herself and those dependent upon the person for support, or to the trustee or trustees of a trust created for the exclusive benefit of the person.

1.28.130 Application for Limited Guardianship of Property

(a) An incompetent person who is 18 years of age or older, a guardian or any person authorized to petition for guardianship of a person may apply to a court for a limited guardianship of property. Consonant with the least restrictive limitation of rights, when the person demonstrates to the satisfaction of the court that the person is capable of managing in whole or in part the person's wages, earnings, income or assets, the court may appoint a limited guardian of such person's property, or in the event one person is appointed or serving as both guardian of the person and of the property of such person, a guardian of the person with limited powers as guardian of the property. Such limited guardianship shall be used until the person has established himself or herself as reasonably capable of managing personal affairs without supervision.

(b) A limited guardian of the property shall receive, manage, disburse and account for all property, both real and personal, of the person not resulting from wages or earnings.

(c) Unless otherwise specified by the court, the person of 18 years of age or over for whom a limited guardian of the property has been appointed shall have the right to:

(1) Receive and expend any and all wages or other earnings from the person's employment; and

(2) Contract and legally bind himself or herself for any sum of money not exceeding $300 or one month's wages or earnings, whichever is greater.

(d) Notwithstanding sub. (c), the court may place such other limitations upon the rights of a person subject to limited guardianship of property under this section as it determines are in the best interests of the person.

(e) The appointment of a limited guardian of property shall have no bearing on any of the rights specified in Section 1.28.030(c) except upon specific finding of the court based upon clear and convincing evidence of the need for such limitations. In no event shall the appointment of a limited guardian constitute evidence of or a presumption as to the incompetence of the ward in any area not mentioned in the court order.

1.28.140 Guardian of the Person of Incompetent

(a) A guardian of the person of an incompetent, upon order of the court, may have custody of the person, may receive all notices on behalf of the person and may act in all proceedings as an advocate of the person, but may not have the power to bind the ward or the ward's property, or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the property. A guardian of the person of an incompetent or a temporary guardian of the person of an incompetent may not make a permanent protective placement of the ward unless ordered by a court but may admit a ward to certain residential facilities or make an emergency protective placement under. The guardian of the person has the power to apply for placement and for commitment under Wisconsin Statute Section 51.20 or 51.45(13).

(b) A guardian of the person shall endeavor to secure necessary care, services or appropriate protective placement on behalf of the ward.

(c) A guardian of the person of an incompetent appointed under this chapter shall make an annual report on the condition of the ward to the court. The report shall include, but not be limited to, the location of the ward, the health condition of the ward, any recommendations regarding the ward and a statement of whether or not the ward is living in the least restrictive environment consistent with the needs of the ward.

1.28.150 Bonds

The court in its discretion may require that a guardian post a bond.

1.28.160 Guardianship of Person; Exemption from Civil Liability

Any guardian of the person is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward and with the degree of diligence and prudence that an ordinary prudent person exercises in his or her own affairs.

Chapter 1.29 Visitation Rights for Grandparents and Others

1.29.010 Purpose

The purpose of this chapter is to preserve the opportunity of children who are members of the Tribe, or eligible for membership in the Tribe, to form and maintain meaningful relationships with grandparents, stepparents, and others who play an important role in their care, development, education, or nurturance.

1.29.020 Definitions

(a) "Child" means any person under the age of eighteen years who is a member of the Tribe or eligible for membership in the Tribe, whether or not domiciled or resident on the Bad River Reservation.

(b) "Court" means the Bad River Tribal Court

1.29.030 Visitation Rights

Upon petition by a child's grandparent, great-grandparent, stepparent, aunt, uncle, or other person with an interest in the child, except a parent, the Court may order visitation rights with the child.

1.29.040 Procedure

The clerk of court shall schedule a hearing on the petition within 60 days of its filing. A copy of any petition filed under this chapter shall be served on each of the child's parents, and any guardian other than a parent, together with a notice of hearing which specifies that the hearing shall be on the merits of the petition and that the court may make a visitation award at the close of the hearing. A guardian ad litem shall be appointed in all cases upon the filing of a petition under this chapter, unless the visitation order is stipulated to by the petitioner, the child's parents, and any other guardian.

1.29.050 Standards

The Court may order visitation rights if it finds that such an order would be in the best interests of the child. The Court shall take into account following factors:

(a) The family relationship of the petitioner to the child, provided that visitation rights may be awarded notwithstanding the death or termination of parental of either or both of the child's parents.

(b) The length and quality of the relationship of the petitioner with the child.

(c) The family relationship, and length and quality of the relationship, between the petitioner and each of the child's parents and any other guardian.

(d) The nature of each of the parent's and other guardian's relationships with the child, and the parents' and guardians' ability to provide appropriate care to the child without visitation by the petitioner.

(e) The relationship between the child's parents, provided that visitation rights may be awarded whether or not the parents' relationship is intact.

(f) The child's wishes, taking into account the age of the child.

(g) The benefits and detriments to the child of awarding visitation rights to the petitioner.

(h) The feasibility of fashioning an award of visitation rights while minimizing interference with the parents' custodial rights.

1.29.060 Order

(a) Within 30 days of the hearing, the Court shall grant or deny the petition, or grant the petition conditionally or with such modifications as are in the best interest of the child. All orders shall be in writing and shall specify to the greatest extent practicable the particular rights, if any, that are awarded.

(b) An order may award visitation rights under the circumstances prevailing at the time of the order, and may also award contingent visitation rights under circumstances prevailing at the time of the order, and may also award contingent visitation rights under circumstances that may reasonably be expected to occur at a future time, provided that any such award of contingent rights is reviewable under Section 1.29.080.

(c) Any person served with a copy of a notice and petition under Section 1.29.040, and with a copy of an order under this section, shall be required to comply with the terms of the order, and may be proceeded against for contempt of court for any interference therewith.

1.29.070 Guardian Ad Litem Fees

The fees of the guardian ad litem shall be paid by the Court. The Court may order the petitioner, parent, and guardian, or any of them, to contribute to the reimbursement of such fees.

1.29.080 Modifications

Any order issued under this chapter may be modified upon motion, notice, and hearing.

Chapter 1.30 Name Changes

1.30.010

Any tribal member may petition the Tribal Court to have his or her name changed. A parent or guardian of a child may petition on behalf of the child to have the child's name changed. Both natural parents of the child must be given any opportunity to object to the change of name.

1.30.020

If no objections are entered on the record by any interested party and all conditions are fulfilled, the Court must grant the petition for a name change. If any interested person enters an objection and within the Court's discretion to grant or deny the petition for change of name.

1.30.030

The petitioner for a change of name must cause a notification of his or her intentions to change name to be published in the Tribal Newsletter for one issue and in the Ashland Daily Press for three issues. The notice must state the petitioner's present name and intended name and must state the date and time of the Court hearing and where change will take place, and that any person who objects will have an opportunity to raise his objections at that time.

Chapter 1.31 Foster Home Licensing

1.31.010 Purpose

The purpose of this ordinance is to protect and promote the health, safety, and welfare of children in foster care.

1.31.020 Exceptions to Rules

The Tribal Council may make, or may delegate the authority to make, exceptions to any of the rules for licensing foster homes when the Tribal Council is assured that granting such exceptions, or the authority to make exceptions, is not detrimental to the health, safety or welfare of children.

1.31.030 Definitions

(a) "Child" means a person under 18 years of age.

(b) "Foster Child" means a child placed for care in a home required to be licensed under this chapter.

(d) "Foster Parent(s)" means a person or persons who operate a facility required to license under this chapter.

(e) "Guardian" means a person, appointed by a court, who has the right to make major decisions affecting the child, including the right to consent to marriage, to enlistment in the armed forces, to major surgery and to make recommendations as to adoption. In the absence of an applicable order "guardian" means the child's natural mother and, if the child is a marital child or if paternity has been established, the child's natural father.

(f) "Legal Custodian" means a person to whom a court has transferred a child's legal custody who has the right to the care, custody and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education and discipline for a child. In the absence of any applicable order, "legal custodian" means the child's natural mother and, if the child is a marital child or if paternity has been established, the child's natural father.

(g) "Licensee" means a person licensed under this chapter.

1.31.040 Rights of Applicants and Licensees

Applicants for license under this chapter, and licensees shall have the following rights:

(a) The right to make application for license.

(b) The right to be evaluated objectively on the basis of this chapter.

(d) The right to written notice and specification of grounds for revocation of license.

(e) The right to accept children for care if licensed.

(f) The right to refuse to accept children for care at their own discretion.

1.31.050 Application for License

(a) Any person seeking a license under this chapter shall make application on forms prescribed by the Indian Child Welfare office. Married couples and couples living together but not married shall both be parties to the application. Couples married but not living together shall have their eligibility determined on a case by case basis.

(b) Foster parents wishing to continue to be licensed shall file a new application when:

(1) Their present license will expire within 30-60 days.

(2) They plan to move from the address specified on their present license within 30 days or less.

(3) Their legal status has changed within the last 30 days.

(4) They wish to have the conditions changed that are specified on their present license.

(c) Persons already licensed through Ashland County and residing on the Bad River Reservation may submit application to the Bad River Indian Child Welfare office for Tribal Foster Home license. Such applications will be handled the same as license application for renewal of license.

1.31.060 Age of Foster Parents

No applicant(s) may receive a license for the first time when one or both are younger than 21 years of age.

1.31.070 Personal Qualifications Required of Foster Parents

(a) Foster parents shall be responsible, mature individuals of reputable character who exercise sound judgment and display the capacity to provide good care for children. They shall give sufficient information to enable the Indian Child Welfare office to verify whether or not they meet these requirements.

(b) A minimum of 25 hours of training and/or meetings approved by the Indian Child Welfare office per licensing period is required of foster parents.

1.31.080 Health of Foster Family

(a) All members of the foster family household shall be in physical and mental health that will not adversely affect the health of children received for foster care, or the quality and manner of their care.

(b) At the time of first application for a license and each licensing period thereafter, foster parents shall authorize their physician, or the Tribal Clinic Family Nurse Practitioner, to submit a statement to Indian Child Welfare certifying that a physical examination was completed and that the foster parents were essentially free from medical conditions which might endanger foster children.

(c) If the Indian Child Welfare office has reason to believe that the physical or mental health of any child or adult member of the foster family household might endanger children in care, the Indian Child Welfare office may require that the foster parents (for themselves or on behalf of their own children) or the adult family members in questions, shall authorize the submitting of a statement from a qualified physician and, if required, a psychiatrist, certifying the condition of the person.

1.31.090 Foster Homes General Requirements

(a) The home shall be so constructed, arranged and maintained as to provide adequately for the health and safety of all occupants. It shall be of size and space, and shall have furnishings and equipment to accommodate comfortably both the family and foster children in their care. The Indian Child Welfare Office may require inspection of the home by fire, health, sanitation or safety officials when in its judgment such expert opinion is needed to assist the Indian Child Welfare office in making a decision about the safety of the home for the care of foster children.

(b) Potentially dangerous items such as, but not limited to, household poisons, medicines, plastic bags, matches, knives and firearms shall not be kept where they are easily accessible to children.

(c) Foster parents shall provide sufficient drawer and closet space to accommodate each child's clothing, toys, and other belongings.

(d) The home shall have space for indoor play and access to outdoor play space.

1.31.100 Foster Home-Sleeping Arrangements

(a) Each foster child shall be provided with a separate bed, except that 2 brothers or 2 sisters may share a double bed. Each bed shall be of size as to insure comfort of the child, shall have suitable springs in good condition, a clean and comfortable mattress with waterproof covering when necessary and provided with suitable bedding adequate for the season.

(b) No foster child 6 years of age or older shall be permitted to share a bedroom with a child of the opposite sex.

(c) Foster children shall not be permitted to sleep in any building, apartment or other structure which is separate from the family home; nor shall any child be permitted to sleep in an unfinished attic, unfinished basement, or in a hall or any other room which is normally used for other than sleeping purposes. For purposes of this chapter, a basement is a story whose floor line is below grade at any entrance or exit and whose ceiling is not more than 5 feet above grade at any such entrance or exit.

(d) At night a responsible adult shall sleep within call of foster children.

1.31.110 Supervision of Children

(a) Child training and discipline shall be handled with kindness and understanding.

(b) No child in care shall be subjected to spanking, unusual, severe or cruel punishment.

(c) No child in care shall be subjected to verbal abuse, derogatory remarks about him or herself or members of his or her family, or to threats to expel the child from the foster home.

(d) No child shall be permitted to discipline any other child in care.

(e) No child shall be deprived of meals, mail or family visits as method of discipline.

1.31.120 Work Performed by Children

Children in care shall have opportunities to assume responsibility for household duties or chores appropriate to age, sex, health and ability. Such duties shall not be assigned as punishment, or interfere with school, sleep, recreation, or study.

1.31.130 Education

Foster parents shall make every reasonable effort to see that children of school age in their care attend school regularly unless otherwise excused by school officials. If the foster parents do encounter problems, they shall contact the Indian Child Welfare office immediately.

1.31.140 Moral, Religious and Cultural Training

Foster parents shall provide for the moral training of children in care and shall make opportunities available to each child in care for religious or cultural education and attendance at services or functions compatible with his or her religious or cultural heritage.

1.31.150 Nutrition

Food shall be provided to children in care in sufficient quantities and varieties, and shall provide for essential nutrition and dietary needs.

1.31.160 Clothing

Foster parents shall see that funds provided by parents of foster care payments for the purchase of clothing are used in such a way that children in their care are comfortably and appropriately clothed within the limits of funds provided, and that children's clothing is kept in a state of suitable repair and cleanliness.

1.31.170 Responsibility of the Foster Parents When Accepting Foster Children

(a) Foster parents shall keep the Indian Child Welfare office informed of the child's progress while in their care. They shall inform the Indian Child Welfare office regarding care, training and plans for the child whenever more than the day to day routine is involved.

(b) Foster parents shall notify the Indian Child Welfare office before taking or allowing the child to go on vacation trips or visits to the child's relatives.

(c) Foster parents shall notify the Indian Child Welfare office as soon as possible of emergencies involving the foster child. This includes serious illness or injury requiring medical treatment, unauthorized absence from the home, or other situations of which prudence suggests the Indian Child Welfare office be notified. This requirement in no way relieves foster parents from first taking action, such as obtaining emergency medical treatment for the child before notifying the Indian Child Welfare office.

(d) Foster parents shall allow the Indian Child Welfare office a minimum of 30 days in which to make suitable plans for the child when the foster parents have requested the child's removal from their home, unless an emergency requires faster action.

(e) Foster parents shall cooperate with the Indian Child Welfare office in seeing that an appropriate relationship is maintained between the child and their relatives.

(f) Foster parents shall maintain in confidence all personal information regarding children in their care, such as prior medical or family history revealed to the foster parents in confidence.

1.31.180 Records to Be Maintained by Foster Parents

(a) The Indian Child Welfare office will provide the foster parents with a record of their foster child's medical and school information. It is the responsibility of the foster parents to keep such records updated during the care of the foster child.

(b) At the request of the Indian Child Welfare office, foster parents shall make available for inspection medical and school records of children received by them for care.

1.31.190 Numbers of Children in Home

The number of children foster parents may receive for care shall be determined by the Indian Child Welfare office on a case by case basis.

1.31.200 Licenses

(a) Investigation of Applicant - Granting of License

After receipt of application for a license, the Indian Child Welfare office shall investigate to determine if the applicant meets all minimum requirements for a license. Upon satisfactory completion of this investigation, the license shall be granted.

(b) Provisions of License

Each license shall bear the name of the person licensed, describe the premises included and state the maximum number of children who can be received, their age and sex, date of issuance and expiration date.

(1) All licenses issued by the Indian Child Welfare office shall be for a term not to exceed 2 years from the date of issuances. No license shall be transferable.

(2) Licenses may be revoked by the Indian Child Welfare office because the licensee has substantially violated any provision of this chapter, any condition of the license, or any condition of any foster home placement agreement, or because the licensee fails to continue to meet the requirements for a license.

(3) The Indian Child Welfare office shall give the licensee written notice of any revocation and the grounds for the revocation. The written notice shall be given at least 30 days prior to the revocation and the revocation shall take place only if the violation remains substantially uncollected at the end of the 30 day notice period. The Indian Child Welfare office may remove at any time for a reason any child placed in the foster parent's care.

(4) Any licensee who objects to the revocation of his or her license may appeal the revocation to the Bad River Tribal Council. The appeal, including grounds for appeal, shall be submitted in writing to the Tribal Chairman, with a copy to the Indian Child Welfare office, no later than 15 days after the end of the 30 day notice period provided in Section 1.31.200(c)(3). The Indian Child Welfare office shall have 15 days in which to respond in writing to the appeal. Such response shall be submitted to the Tribal Chairman, with a copy provided to the licensee. The Tribal Council shall consider the appeal in executive session. At its discretion the Tribal Council may invite oral presentation from the licensee and the Indian Child Welfare office.

(d) Renewal of License

A licensee may apply to renew his or her license by completing the license renewal form prescribed by the Indian Child Welfare office.

(e) Inspection of Licensees

The Indian Child Welfare office may visit and inspect each foster home licensed by it, and for such purpose shall be given unrestricted access to the premises described in the license.

Chapter 1.32 Probate Code

Subchapter I General Provisions

1.32.010 Authority

(a) Article VI, Section 1 (k) of the Bad River Tribal Constitution authorizes the Tribal Council to regulate the inheritance of property, real and personal, other than allotted lands within the territory of the Bad River Reservation, subject to review by the Secretary of the Interior.

(b) Article VI, Section 1 (q) of the Bad River Constitution authorizes the Tribal Council to promulgate and enforce ordinances which shall be subject to review by the Secretary of the Interior, governing the conduct of members of the Bad River Band, and of non-members of the Reservation providing for the maintenance of law and order; and for the administration of justice by establishing an Indian court and defining its duties and powers.

(c) Article VI, Section 1(r) of the Bad River Tribal Constitution authorizes the Tribal Council to consolidate inherited land holdings by purchase, exchange, transfer, gift, or voluntary relinquishment, including the power to reassign same in the public interest.

(d) 25 U.S.C. § 2205 provides that any Indian tribe may adopt tribal probate code, subject to the approval of the Secretary of the Interior.

1.32.020 Findings, Purpose and Objectives

(a) Findings.

(1) The Bad River Tribal Council Tribal Council finds that probate procedure in the Bad River Tribal Court is in the best interest of Tribal members in that probate may be concluded more economically and more expeditiously in the Bad River Tribal Court by other jurisdictions.

(2) Furthermore, the determination of how property is disposed upon a person's passing is an exercise of self-governance crucial to the Band's sovereignty.

(b) Purpose. This Probate Code will provide for the exercise of the greatest possible Tribal jurisdiction over probate of the estate of decedents who were domiciled or owned real or personal property on the Bad River Reservation.

(1) To ensure that the property of decedents passes to the rightful heirs or beneficiaries.

(2) To comply with the decedent's wishes as much as possible.

(3) To comply with tribal custom and tradition.

(4) To provide a simple, efficient and inexpensive method for probating decedent's property.

(5) To prevent the transfer of land out of Tribal ownership and control.

(6) To ensure that the rights of creditors of decedents are protected to the extent possible and fair.

(7) To promote and further the Band's inherent right of self-governance.

1.32.030 Definitions

As used in this Code, unless the context otherwise requires, the following terms shall have the meaning as indicated.

(a) "Abatement" means a reduction or decrease.

(b) "Administrator" means the person appointed by the Band's Trial Court to administer the estate of a decedent according to this Probate Code and may include the Executor named in the decedent's will, appointed at the request of an interested party, appointed by the Court, or the public Administrator.

(c) "Adoption" means the legal process pursuant to statute in which a child's legal rights and duties toward his or her natural parents are terminated and similar rights and duties toward his or her adoptive parents are substituted. To take into one's family the child of another and give him or her, the rights, privileges, and duties of a child and heir. An adopted person is the child of an adopting parent and of the natural parents for inheritance purposes only. The adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent. This legal definition of adoption does not include the customary adoption traditionally practiced by members of the Band.

(d) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.

(e) "Bond" means an obligation to pay a sum of money upon the happening of a stated event.

(f) "Class Gift" means a devise or gift to a body of people, uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal, or other definite proportions, the share of each being dependent for its amount upon the ultimate number of people in the class. (Example: "I leave $10,000 to my grandchildren." In the example, the decedent's grandchildren constitute a class of people which may grow over time, but will be a certain number upon the passing of the decedent.)

(g) "Codicil" means a supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in an existing will. A codicil does not purport to dispose of the entire estate or to contain the entire will of the testator, nor does it ordinarily expressly or by implication revoke an entire prior will.

(h) "Conveyance" means the transfer of legal title to property from one person, or a class of person, to another person by deed. This term may also include assignment, lease, Bad River mortgage or encumbrance of land.

(i) "Court" means the Trial Court of the Bad River Band.

(j) "Decedent" means a person who has passed leaving property that is subject to administration.

(k) "Deed" means a conveyance of realty by a writing signed by a grantor, whereby title to realty is transferred from one at another.

(l) "Devise" means a gift of real property by will.

(m) "Devisee" means any person to whom lands or other real property are given by will.

(n) "Devolution" means the passage or transfer from one person to another; the falling on or accrual to one person as the successor of another.

(o) "Disinterested" means that the person hearing the oral declaration of testator's intent will not benefit in any way directly or indirectly nor will a spouse or any relative of said disinterested person benefit in any way directly or indirectly

(p) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under his or her will or the laws governing intestate succession.

(q) "Domicile" means the place where a person has his or her true, fixed and permanent home and principal establishment, and to which whenever he or she is absent he or she has the intention of returning.

(r) "Donee" means the recipient of a gift or conveyance, in contrast to the giver or donor.

(s) "Emancipation" means the surrender, from a parent or guardian, the care and custody of a child or incompetent either by law or Court order.

(t) "Escheat" means reversion of property to the Band because no valid heir or person to inherit exists.

(u) "Estate" means, when used in connection with probate proceedings, the totality of assets and liabilities of the decedent, including all manner of property, real and personal.

(v) "Executor" means a person designated by a testator to carry out the directions and requests in the testator's will and to dispose of the testator's property according to the provisions of his or her will.

(w) "Fiduciary" as a noun means that person or institution who manages money or property for another and who must exercise the highest standard of care in such management activity; as an adjective, it describes the nature of a trust, which is the highest and most scrupulous duty owed to another.

(x) "Fraud' means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he or she shall act upon it to his or her injury.

(y) "Guardian" means a person empowered by the law to care for another who, by virtue of age or lack of mental capacity is legally unable to care for himself or herself. Guardianship may also involve the duty to manage the estate of a child or incompetent person.

(z) "Half-blood" means the degree of relationship which exists between those who have the same father or the same mother, but not both parents in common, i.e., a person who shares one parent in common with another person.

(aa) "Heir" means any person, including the surviving spouse, who is entitled under the law governing intestate succession to an interest in the property of a decedent.

(bb) "Heir by Killing" means any person who knowingly participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of the decedent.

(cc) "Heirship Land" means land (s) held in trust by the BIA for the benefit of an individual Tribal member or, for fractionated land, land that has been conveyed to more than one Tribal member, through inheritance.

(dd) "Holographic Will" means a will that is entirely written and signed by the testator in his or her own handwriting.

(ee) "Incompetent" means a person who is recognized by a court of law to be substantially incapable of managing his or her property or earing for himself or herself by reason of infirmities of aging, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

(ff) "Indian" means a member of the Bad River Band, or any other person of Indian blood who is a member of a federally recognized Indian tribe.

(gg) "Inheritance" means that which is inherited or to be inherited. Property which descends to heir on the intestate passing of another. An estate or property which a person has by descent, as heir to another, or which he or she may transmit to another, as his or her heir.

(hh) "Insolvency" means the status of a person when his or her total assets are of insufficient value to pay his or her debts.

(ii) "Interested Witness" means any of the following:

(1) An heir of the decedent.

(2) A beneficiary named in any document offered for probate as the will of the decedent.

(3) A beneficiary of a trust created under any document offered for probate as the will of the decedent.

(4) A person named as Administrator or personal representative in any document offered for probate as the will of the decedent.

(5) Additional persons as the Trial Court may include.

(jj) "Intestate" means one who passes without leaving a valid will, or the circumstance of dying without leaving a valid will effectively disposing of all of the estate.

(kk) "Intestate Succession" means succession to property of a decedent who passes without a will or with a will that has certain provisions which are not valid, i.e. no longer alive or available.

(ll) "Issue" when used to refer to persons who take by intestate succession, means children, grandchildren, lineal descendants of more remote degree, except those who are the lineal descendants of living descendants. The term includes legally adopted children and non-marital children and his or her issue.

(mm) "Letters Testamentary" means the formal document of authority and appointment given to an Executor or Administrator by the Court, empowering him or her to fulfill his or her duties as required by his or her position as Administrator.

(nn) "Life Estate" means an estate that exists as long as the person who owns or holds it is alive. its duration may also be for the lifetime of another person.

(oo) "Living Will" means a document in which a person sets forth directions regarding medical treatment to be given if he or she becomes unable to participate in decisions regarding his or her medical care.

(pp) "Member" means an enrolled member of the Bad River Band.

(qq) "Band" means the Bad River Band.

(rr) "Passes or Passed" means a person who has died.

(ss) "Personal Property" means all property other than real property.

(tt) "Personal Representative" includes both Administrators, as appointed by the Court, and Executors, once approved by the Court to administer the decedent's estate.

(uu) "Pretermitted" means a child or other descendant omitted from the will of a testator.

(vv) "Property' means any interest, legal or equitable in real or personal property, without distinction as to kind, except trust property.

(ww) "Real Property" means all interest in land or in buildings or improvement permanently attached to land.

(xx) "Renounce" means to make an affirmative declaration of abandonment. A waiver of rights.

(yy) "Residue" means the surplus or left over part of a testator's estate remaining after all the debts and distributions have been completed.

(zz) "Take by Representation" means the principle upon which the issue of a decedent takes or inherits the share of an estate which his or her immediate ancestor would have taken or inherited, if living.

(aaa) "Taker" means one who takes or acquires an estate, in whole or in part, by devise.

(bbb) "Testator" means a decedent who passes leaving a valid will.

(ccc) "Title" means the formal rights of ownership of property. Title is the means whereby the owner of lands and property has the just possession of his or her property.

(ddd) "Transfer" means an act of the parties, or of the law, by which the title to property is conveyed from one person to another.

1.32.040 Jurisdiction

The Bad River Tribal Court shall have jurisdiction to administer in probate the estate of a decedent who, at the time of his or her passing was domiciled or owned real property situated within the Bad River Reservation to the extent that such estate consists of property which does not come within the exclusive jurisdiction of the Secretary of the Interior of the United States. In no instance shall the Court have jurisdiction over allotted lands within the territory of the Bad River Reservation.

1.32.050 Native American Finery and Artifacts

Notwithstanding the provisions of this Code relating to descent and distribution, the family may distribute any artifacts and finery belonging to the decedent in accordance with the custom and traditions of the Bad River Band prior to the initiation of the administration of the estate. Such distribution shall be in accordance with directions left by the decedent, if any.

1.32.060 Evidence as to Passing or Status

In proceedings under this Code, the following rules relating to determination of passing and status are applicable.

(a) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the passing purportedly occurred is prima facie proof of the fact, place, date and time of passing and the identity of the decedent.

(b) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report.

(c) Whereabouts Unknown. A person who is absent for a continuous period of five (5) years, during which they have not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry by the Band is presumed to be dead. His or her passing is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that passing occurred earlier.

1.32.070 Court Procedures, Rules and Powers

(a) Unless specifically provided to the contrary in this Code or unless inconsistent with its provisions, the Bad River Tribal Court Code, including the rules concerning vacation of orders, govern formal proceedings under this Code. Appeals shall be taken in accordance with the Band's Rule of Appellate Procedures.

(b) Judicial Powers and Duties.

(1) The Court may make orders for the sale of personal property at public or private sale for the compounding of debts, for the settlement of an estate as insolvent, for the approval of bonds and all other orders of an ex parte nature as may facilitate the settlement of estates. The orders shall be in writing, signed by the judge issuing the same, and shall be filed and recorded as an entry in the proper record.

(2) The Court shall examine the bonds filed by the personal representations, with a view to ascertaining his or her sufficiency and may approve the same. The Court may examine any inventory, sale, bill, account current, final account and vouchers filed therewith, or examine into the condition of an estate generally. Bond may be waived for good cause shown.

(3) The Court shall have the authority to draft orders requesting property of funds outside the exterior boundaries of Bad River trust lands to be delivered for probate to the Court.

(c) Records and Certified Copies. The Clerk of Court shall keep a file for each decedent of all documents filed with the Court under this Code and shall keep a numerical index of all such estates to facilitate access to such records. Upon payment of a fee, as established by the Court, the Clerk shall issue certified copies of any document or paper so filed.

(d) Trials. All trials under this Code shall be by the Court.

(e) Oath or Affirmation on Filed Documents. Except as specifically provided in this Code, every document filed with the Court under this Code shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and the penalties for perjury shall follow deliberate falsification therein.

1.32.080 Effect of Fraud and Evasion

(a) Whenever fraud has been perpetuated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not.

(b) Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his or her lifetime, which affect the succession of the estate.

1.32.090 Notice

(a) If notice of a hearing on any petition or other matter is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his or her advocate if they have appeared by advocate or requested that notice be sent to his or her advocate. Notice shall be given by any of the following methods:

(1) By mailing a copy thereof at least 45 days before the time set for the hearing by certified or registered mail.

(2) If the address, or identity of any person is not known and cannot be ascertained by reasonable diligence, by posting a copy of the notice in at least three conspicuous public places within the Band at least 45 days before the time set for the hearing and publishing the notice in the Ashland Daily Press for three (3) consecutive issues and the News From the Sloughs for one issue.

(3) The Court for good cause shown may provide for a different method or time of serving notice for any hearing.

(b) Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding.

(c) A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by the person or his or her attorney and filed in the proceeding.

1.32.100 Renunciation of Succession

(a) A person (or his or her personal representative) who is an heir, devisee, person succeeding to a renounced interest, beneficiary under a testamentary instrument or person designated to take pursuant to a power of appointment exercised by a testamentary instrument, may renounce in whole or in part the succession to any property or interest therein by filing a written instrument with the Court not later than six months after the decedent's passing or the time at which it is determined that the person is entitled to take property if such is not known at the time of passing.

(b) The instrument shall conform to the following.

(1) It shall describe the property or part thereof or interest therein renounced.

(2) It shall be signed by the person renouncing.

(3) It shall declare the renunciation and the extent thereof

(4) It shall state that the renunciation is irrevocable.

(c) Upon proper renouncement, the interest renounced passes as if the renouncing person had predeceased the decedent or donee.

1.32.110 Effect of Divorce, Annulment and Decree of Separation

A person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent remarriage, he or she is married to the decedent at the time of passing. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this Code.

1.32.120 Heirship by Killing

(a) No Acquisition of Property by Killing. Subject to any applicable Federal law relating to the devise or descent of land or property, no heir by killing in any way acquires any land or property or interest in any land or property as the result of the passing of the decedent, such property shall pass in accordance with this section.

(b) Descent, Distribution, and Right of Survivorship. The heir by killing shall be deemed to have predeceased the decedent as to decedent's land or property or interests in land or property which would have conveyed from the decedent or his or her estate to such heir as follows:

(1) under intestate succession under Chapter III;

(2) as the surviving spouse;

(3) by devise;

(4) as a reversion or a vested remainder;

(5) as a survivorship interest; and

(6) as a contingent remainder or executory or other future interest.

(1) Property held by only the heir by killing and the decedent as joint tenants, joint owners, or joint obligees shall convey upon the passing of the decedent to his or her estate, as if the heir by killing had predeceased the decedent.

(2) Property held jointly by three (3) or more persons, including both the heir by killing and the decedent, any income which would have accrued to the heir by killing as a result of the passing of the decedent to his or her estate, as if the heir by killing had predeceased the decedent.

(3) Notwithstanding any other provision of this section, the decedent's land or property or interest in land or property that is held in a joint tenancy with the right of survivorship shall be severed from the joint tenancy as though the land or property held in the joint tenancy were to be severed and distributed equally among the joint tenants and the decedent's interest shall convey to his or her estate; the remainder of the interests shall remain in joint tenancy with right of survivorship among the surviving joint tenants.

(d) Life Estate for the Life of Another. If the estate is held by a third person whose possession expires upon the passing of the decedent, it shall remain in such person's hands for the period of time following the decedent's passing equal to the life expectancy of the decedent but for the killing.

(e) Preadjudication Rule. If a person has been charged, whether by indictment, information, or otherwise by any lawful jurisdiction, with voluntary manslaughter or homicide in connection with a decedent's passing, then any and all land or property that would otherwise convey to that person from the decedent's estate shall not convey or be distributed by the Court until the criminal trial court dismisses the case with prejudice or the person is acquitted of the offense of manslaughter or homicide.

1.32.130 Simultaneous Passing Provisions

(a) Where the title to property covered under this Code or the devolution thereof depends upon priority of passing and there is no sufficient evidence that the persons have died otherwise than simultaneously. the property of each person shall be disposed of as if they had survived except where provided otherwise in this Code.

(b) Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed in the proportion that the beneficiary bears to the decedent or decedents.

(c) Where there is not sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus shall be distributed in the proportion that one hears to the whole number of joint tenants.

(d) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

(e) The above provisions on simultaneous passing shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, deed, contract or insurance.

Subchapter II Wills

1.32.140 Who May Make a Will

Any person 18 or more years of age and who is of sound mind may make a will.

1.32.150 Execution

Except as otherwise provided for oral wills (Section 1.32.170) or holographic wills (Section 1.32.160) every will shall be put in writing and signed by the testator, or in the testator's presence and at the testator's direction signed by another person, and shall be signed by at least two persons each of whom either witnessed the signing by the testator of the will or the testator's acknowledgment of the signature and direction to do so.

1.32.160 Holographic Will

A will which does not comply with Section 1.32.150 of this Code is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

1.32.170 Oral Will

A will which does not comply with Section 1.32.150 of this Code is valid as an oral will under custom if all children, whether residing in testator's home or not, and testator's spouse, if alive, are present at the announcement of the oral will and agree that the testator orally made known the testator's last will before them.

(a) An oral will is also valid under custom if made in the presence of a competent disinterested adult person by a testator who declares at the time that it is his or her wish that his or her property descend in a specific manner upon the event of the testator's passing.

(b) The Court shall hear testimony from the disinterested person who heard such declaration and the Court shall decide the following: (1) whether such testimony is credible; and (2) whether the manner of disposition of testator's property is reasonable and customary. If the Court finds that both of the foregoing conditions prevail. the testator's expressed intent shall be carried out as a valid will.

1.32.180 Self-Proved Will

An attested will may, at the time of its existence or at any subsequent date, be made self- proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before a notary public or a judge. under official seal, attached or annexed to the will in form and content and substantially as follows:

State of ___________________

County of _________________

We, ________________, ________________, and, the testator and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, being first duly sworn, do hereby declare to the foregoing authority that the testator signed and executed the instrument as the testator's last will and that the testator signed willingly or directed another to sign for the testator, and that the testator executed the instrument as his or her free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his or her knowledge the testator was at the time 18 years or more of age, of sound mind and under no constraint or undue influence.

________________,

TESTATOR

_________________________ _________________________ ___________________

WITNESS Address Date

_________________________ _________________________ ___________________

WITNESS Address Date

Subscribed, sworn to and acknowledged before me by the testator, and subscribed and sworn to before me by ________________________ _______________and ___________________________ witnesses, this day of _________________ 20 ______.

____________________________________

SIGNED BY JUDGE OR NOTARY

1.32.190 Who May Witness

(a) Any person who, at the time of execution of the will, would be competent to testify as a witness in Court to the facts relating to execution may act as a witness to the will. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved.

(b) A will is not invalidated because signed by an interested witness; but, unless the will is also signed by two (2) disinterested witnesses, any beneficial provisions of the will for a witness or the witness' spouse are invalid to the extent that such provisions in the aggregate exceed in value what the witness or spouse would have received had the testator died intestate. Valuation is to be made as of testator's passing.

1.32.200 Choice of Law as to Execution

A written will is valid if executed in compliance with this Code or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of passing of the testator is domiciled, has a place of abode or was a abandoned.

1.32.210 Revocation by Writing or by Act

A will or any part thereof is revoked by either of the following.

(a) By a subsequent valid will, codicil, or other instrument which revokes the prior will in whole or in part expressly or by inconsistency.

(b) By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and at the testator's direction.

1.32.220 Revocation by Divorce; No Revocation by Other Changes of Circumstances

(a) If after executing a will, the testator is divorced or the testator's marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as Executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.

(b) Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.

1.32.230 Revival of Revoked Will

(a) If a subsequent will that partly revoked a previous will is itself revoked by a revocatory act under Section 1.32.210, the revoked part of the previous will is revived. This section does not apply if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part of the previous will to take effect as executed.

(b) If a subsequent will that wholly revoked a previous will is itself revoked by a revocatory act under Section 1.32.210, the previous will remains unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declaration that the testator intended the previous will to take effect as executed.

(c) If a subsequent will that wholly or partly revoked a previous will is itself revoked by another later will, the previous will or its revoked part remains revoked, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent that it appears from the terms of the later will, or from the testator's contemporary or subsequent declarations, that the testator intended the previous will to take effect.

1.32.240 Incorporation by Reference

Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

1.32.250 Events of Independent Significance

A will may dispose of property by reference to acts and events which have significance apart from his or her effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator's passing. The execution or revocation of a will of another person is such an event.

1.32.260 Rules of Construction and Intention

(a) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions.

(b) The Following rules of construction apply unless a contrary intent is clear in the will.

(1) All Property and After-acquired Property. A will is construed to pass all property which the testator owns at his or her passing including property acquired after the execution of his or her will.

(2) Devisee Must Survive Testator by 120 Hours. A devisee who does not survive the testator by 120 hours is treated as if they predeceased the testator, unless the will of the decedent contains such language dealing explicitly with simultaneous passings, including common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.

(3) Failure of Testamentary Provision. If a devise other than a residuary devise fails for any reason, it becomes part of the residual estate. If the residual estate is devised to two or more persons and the share of one of the residuary devises fails for any reason, his or her share passes to the other residuary devisees, or to other residuary devises in proportion to his or her interests in the residue.

(4) Class Gifts. One who would have been a devise under a class gift if they had survived the testator is treated as a devisee for purposes of this section whether his or her passing occurred before of after the execution of the will.

(5) Exercise of Power of Appointment. A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment unless specific reference is made to that power.

(6) Generic Terms. Half-bloods, adopted persons and persons born out of wedlock are included in class gifts terminology and terms of relationships in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father or unless paternity has been judicially determined during the life of the father or in some other manner which satisfies the court by clear and convincing evidence that paternity has been conclusively established.

(7) Ademption by Satisfaction. Property which a testator gave in his or her lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction. For the purpose of partial satisfaction, property given during the lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of passing of the testator, whichever occurs first.

Subchapter III Intestate Succession

1.32.270 Intestate Succession

Any part of the estate of a decedent not effectively disposed of by the decedent's will passes to the decedent's heirs as prescribed in the following sections of this chapter.

1.32.280 Share of the Spouse

The intestate share of the surviving spouse is as follows.

(a) If there is no surviving issue or parent of the decedent, the entire intestate estate; if there is no surviving issue but the decedent is survived by a parent or parents, the first $20,000, plus one-half of the balance of the intestate estate.

(b) If there are surviving issue all of whom are issue of the survived spouse also, the first $20,000, plus one-half of the balance of the intestate estate.

(c) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

1.32.290 Share of Heirs Other than Surviving Spouse

The part of the intestate estate not passing to the surviving spouse under Section 1.32.280 of this Code, or the entire intestate estate if there is no surviving spouse, passes as follows.

(a) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation.

(b) If there is no surviving issue, to the decedent's parent or parents equally; if there is no surviving issue or parent, to the issue of the parents or either of them by representation.

(c) If there is no surviving issue, parent or issue of a parent, and the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent. or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

1.32.300 No Taker

If there is no taker under the provisions of this chapter, the intestate estate passes to the Band.

1.32.310 Representation

If representation is called for by this Code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent. Each surviving heir in the nearest degree receives one share and the share of each deceased person in the same degree is divided among his or her issue in the same manner.

1.32.320 Posthumous Persons

Person conceived before the decedent's passing but born thereafter inherit as if they had been born in the lifetime of the decedent.

1.32.330 Kindred of Half-Blood; Stepchildren; Foster Children

Persons of the half-blood inherit the same share they would inherit if they were of the whole blood, but stepchildren and foster children and his or her descendants do not inherit, unless they are adopted Tribal members.

1.32.340 Divorce

Divorces of husband and wife do not affect the right of children to inherit his or her property.

1.32.350 Determination of Relationship of Parent and Child

If for purpose of intestate succession a relationship of parent and child shall be established to determine succession by, through or from a person as follows.

(a) An adopted person shall inherit from all other relatives of an adoptive parent as though the adopted person was the natural child of the adoptive parent and the relatives shall inherit from the adoptive parent's estate as if they were the adoptive parent's relatives.

(b) A person born out of wedlock is a child of the mother and is a child of the father, if the relationship of parent and child has been established but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father or unless paternity has been judicially determined during the life of the father or in some other manner which satisfies the court by clear and convincing evidence that paternity has been conclusively established.

Subchapter IV Family Rights/Protection

1.32.360 Spouse's Right to Elective Share

If a married person domiciled on the Band's trust or heirship land passes, the surviving spouse has a right to elect to take an elective share of one-third of the estate of the decedent, less funeral and administration expenses, family allowance and enforceable claims against the estate. plus the value of all property in excess of $1,000 transferred by the decedent to any person other than the surviving spouse in the three (3) years preceding the decedent's passing, to which the surviving spouse has not joined by written consent.

1.32.370 Right of Election Personal to Surviving Spouse

The right of election of the surviving spouse may be exercised only during the surviving spouse's lifetime and only by the surviving spouse. In the case of an incompetent person, the right of election may be exercised only by order of the Court in which protective proceedings as to the surviving spouse's property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his or her probable life expectancy.

1.32.380 Waiver of Right to Elect and of Other Rights

The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before (pre-nuptial agreement) or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation of each of all benefits which would otherwise pass to them from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

1.32.390 Duty of Court to Advise

(a) If a surviving spouse has a right to election under Section 1.32.360, then at any time after the filing of an inventory and not more than three months after admission to probate, the Court shall advise the surviving spouse of his or her right to election and shall explain fully the right and that in the event of the failure to exercise the right of election the will shall govern and control the distribution of the estate.

(b) If the surviving spouse passes or becomes incompetent before being advised of the right of election under Section 1.32.360 and has not filed a waiver or renunciation of the right of election, the Court shall advise the personal representative or guardian of the estate of the deceased or incompetent surviving spouse of the right of election as provided in paragraph a, above.

1.32.400 Proceeding for Elective Share; Time Limit

(a) The surviving spouse may elect to take his or her elective share in the estate by filing in the Court and mailing or delivering to the personal representative a petition for the elective share within three (3) months after the publication of notice to creditors for filing claims which arose before the passing of the decedent. The Court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.

(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the estate whose interests will be adversely affected by the taking of the elective share. The surviving spouse may withdraw his or her demand for an elective share at any time before entry of a final determination by the Court.

(c) After notice and hearing, the Court shall determine the amount of the elective share and shall order its payment from the assets of the estate or by contribution as appears appropriate under Section 1.32.410.

(d) If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than there would have been if relief had been secured against all persons subject to contribution.

(e) The order or judgment of the Court may be enforced as necessary in a suit for contribution or payment.

1.32.410 Effect of Election on Benefits by Will

(a) An election by a surviving spouse does not affect the right of such spouse to participate in a family allowance but the value of any part of the estate passing to the surviving spouse by testate or intestate succession shall, unless renounced by the spouse in his or her petition, be counted against his or her elective share.

(b) When an election to take an elective share has been made and there is insufficient property in the estate which is not specifically disposed of to pay the elective share, liability for payment of the elective share shall be equitably apportioned among the other recipients of the estate in proportion to the value of his or her interests therein.

(c) Only original transferees from, or appointees of, the decedent and his or her donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to them or to pay its value as of the time transferred.

1.32.420 Omitted Spouse

(a) Notwithstanding the provisions of Section 1.32.360 if a testator fails to provide by will for his or her surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate they would have received if the decedent left no will, unless it appears from the will that the omission was intentional or the testator had provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b) In satisfying a share provided in this section, the devises made by the will abate as provided in Section 1.32.690 which concerns "abatement".

1.32.430 Pretermitted Children

(a) If a testator fails to provide in his or her will for any of his or her children living or born or adopted after the execution of the will, the omitted child receives a share in the estate equal in value to that which they would have received if the testator had died intestate unless:

(1) It appears from the will that the omission was intentional; or

(2) When the will was executed the testator had one or more children and devised substantially all his or her estate to the other parent of the omitted child; or

(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b) If at the time of execution of the will, the testator fails to provide in his or her will for a living child solely because they believe the child to be dead, the child receives a share in the estate equal in value to that which they would have received if the testator had died intestate.

(c) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 1.32.690, below, which concerns "abatement".

1.32.440 Exempt Property

(a) The surviving spouse of a decedent is entitled from the estate to value not exceeding $3,500 therein in household furniture, automobiles, furnishings, appliances and personal effects. The $3,500 in value of the aforementioned items shall be over and above any security interest in said items. If there is no surviving spouse, children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than $3,500, or if there is not $3,500 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $3,500 value.

(b) Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.

1.32.450 Family Allowance

(a) In addition to the right to exempt property, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for his or her maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having his or her care and custody; but in case of any minor child or dependent child that is not living with the surviving spouse, the allowance may be made partially to the child or his or her guardian or other person having his or her care and custody, and partially to the spouse, as his or her needs may appear. The family allowance is exempt from and has priority over all claims.

(b) The family allowance is not chargeable against any benefit or share conveying to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share. The passing of any person entitled to family allowance terminates his or her right to allowances not yet paid.

1.32.460 Source, Determination and Documentation

(a) If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property.

(b) The personal representative may determine the family allowance in a lump sum not exceeding $6,000 or periodic installments not exceeding $500 per month for one year, and may disburse funds of the estate in payment of the family allowance. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the Court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.

1.32.470 Dwelling Exemption

Upon the appraisal of an estate and it appearing that a dwelling is personal property in which other heirs and/or creditors have an interest, and the dwelling is occupied by the surviving spouse and/or the dwelling is necessary for the welfare and protection of such surviving spouse and/or children, the Court may, by order, set aside such dwelling for the benefit of said surviving spouse and/or children as a homestead for a period not to exceed ten (10) years, provided that in ease of special hardship or emergency, the Court may extend such term from year to year thereafter, provided that any heir or heirs or creditors of the deceased shall have the opportunity to appear before the Court and protest the extension of the original terms setting aside said homestead. The Court may also set aside such sums from the estate as the Court may deem necessary for maintenance and upkeep of the home. The Court shall hear evidence on any contest before making any order of extension.

1.32.480 Summary Probate of Exempt Estates

(a) Exempt Estates. An estate having an appraised value which does not exceed $5,000 and which is to be inherited by a surviving spouse and/or minor children of the deceased shall be exempt from the claims of all general creditors and the probate thereof may be summarily concluded as provided in this section.

(b) Notice of Hearing to Determine Whether the Estate is an Exempt Estate. Upon petition of the Administrator, the Court shall enter an order stating that it appears, from the appraised value that the whole estate does not exceed $5,000 and that such estate is to be inherited by the surviving spouse and/or minor children of the decedent and shall set a date and hour forbearing objections of any interested persons, if any there be, why the whole estate should not be declared to be exempt from the claims of all general creditors and distributed to the surviving spouse and/or minor children of the decedent. Notice of such hearing shall be in accordance with Section 1.32.090. On or before the time set for such hearing, the Administrator shall file his affidavit with the Court indicating compliance with this requirement of giving notice.

(c) Hearing to Determine Whether the Estate is an Exempt Estate. If, upon such hearing, the Court finds that such estate is an exempt estate, the Court shall enter an order directing the Administrator to distribute such estate to the surviving spouse and/or the minor children of the deceased as set forth in the order and provide that no further proceedings are necessary and that, upon distributing the distributive share(s) of such estate to those entitled thereto and filing receipts therefore, the estate shall be closed.

Subchapter V Administration of Intestate Estates

1.32.490 Petition

(a) When any person passes leaving an intestate estate subject to the jurisdiction of the Bad River Tribal Court under this Code, any person claiming to be an heir of the decedent, or the Band, may petition the Court for a determination of the heirs of the decedent and for the distribution of such property. The petition shall contain the names and addresses of all persons known to the petitioners who may be entitled to share in the distribution of the estate.

(b) Whenever there is a valid will probated by the Court, which does not dispose of all the decedent's property, a determination of the heirs entitled to such property and its distribution shall be made by the Court at or before the time the remainder of the estate is distributed without the necessity of a separate petition and proceeding.

(c) The following persons, if legally competent, shall be afforded the priority in order of his or her listing for appointment as Administrator: the surviving spouse, any child over 18 years of age, other blood relatives, any adult tribal member, or any adult person.

(d) The appointed Administrator shall take constructive or physical possession of all property of the decedent subject to this Code as the Court shall order, taking into consideration the interests of the person who may have occupied the homestead of the decedent at the time of his or her passing.

1.32.500 Administration of Intestate Estate

(a) If an Administrator is appointed over a decedent's property, which is disposed of by a valid will, such person shall likewise assume authority over the decedent's intestate estate and administer it with the rest of the decedent's estate.

(b) Whenever it reasonably appears that such is necessary to the preservation, administration and/or distribution of a decedent's intestate estate, the Court shall appoint an Administrator over the estate. It shall not be necessary to appoint an Administrator if the value of the decedent's property appears to be less than $5,000 in value, no problems in administering the estate are foreseen, and no one requests that one be appointed.

(c) The following persons if legally competent, shall be afforded the priority in order of his or her listing for appointment as Administrator: the surviving spouse, any child over 18 years of age, other blood relatives, any adult tribal member, or any adult person.

(d) The duties of the Administrator shall be as follows:

(1) To take constructive or physical possession of all property of the decedent subject to this Code as the Court shall order, taking into consideration the interests of the person or persons who may have occupied the homestead of the decedent at the time of his or her passing.

(2) Within one (1) month of appointment make an inventory and appraisement of such property and file it with the Court.

(3) Within one (1) month appointment. determine and file with the Court a list of all known relatives of the decedent, their ages, their relationship to the decedent, and their whereabouts if known.

(4) Subject to the approval of the Court, ascertain and pay all of the debts and legal obligations of the decedent.

(5) Prosecute and defend actions for or against the estate.

(6) Distribute the estate in accordance with the order of the Court and file receipts with the Court showing distribution of the estate.

(e) The Administrator shall file a bond in an amount to be set by the Court to insure his or her faithful, honest performance of his or her duties as Administrator. Unless otherwise made to appear necessary or desirable, no bond shall be required of an Administrator who is the spouse or child of a decedent.

1.32.510 Appointment of Administrator

(a) Upon receipt of a petition to administer an intestate estate, the clerk shall schedule a hearing at which an Administrator will be appointed. Said hearing shall be scheduled in accordance with Sections 132.7 and 132.9. The Court may, upon motion, or its own motion, waive any bond requirement if practical.

(b) Notice of the hearing shall be made by the petitioning party or by the clerk if the Band is the petitioning party and such notice shall be in accordance with Section 9.

(c) The Court shall determine who is the proper person to appoint as Administrator, and if such person manifests his or her willingness to serve, order his or her appointment as Administrator.

1.32.520 Oath of Administrator; Letters of Administration

(a) Upon his or her appointment as Administrator, the person appointed shall take an oath to be prescribed by the Court to the effect that he or she will faithfully and honestly administer the estate.

(b) Upon taking the oath and filing the bond, if any is required, the Administrator shall be granted letters of administration as proof of his or her appointment.

1.32.530 Notice to Creditors

The Administrator of the estate or the clerk if no Administrator is appointed, shall cause notice to creditors to be posted in at least three conspicuous places within the Band and published for three consecutive issues in the Ashland Daily Press and the News from the Sloughs. Said notice shall state that creditors have 90 days from the date of the first publication of the noticed to present their claims to the Administrator or clerk and that only those claims so presented may be paid to the estate.

1.32.540 Payment of Creditors

(a) Payment to creditors of the decedent shall be made by the Administrator, or by the clerk if no Administrator is appointed, only upon the order of the Court after determining the validity of the claims by affidavit or personal testimony of the claimant.

(b) All just claims of creditors allowed by the Court shall be paid before distribution of the estate but shall be paid only after payment of the family allowance as provided herein.

1.32.550 Accounting

Prior to the distribution of the estate for which an Administrator has been appointed, such Administrator shall render an accounting to the Court, for its approval, of all receipts and disbursements from the estate, showing the present status of the estate and distribution of the estate can commence and also showing the computation of any attorney's and/or Administrator's fees involved for which approval for payment is sought. in estates in which no Administrator is appointed, the clerk shall account to the Court for all transactions relating to the estate.

1.32.560 No Taker/Escheat to Band

If there is no taker of the intestate estate, the intestate estate passes or escheats to the Band.

1.32.570 Advancements

If a person passes intestate, property which they gave in his or her lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of passing of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.

1.32.580 Debts to Decedent

A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate or other share of the debtor's issue.

1.32.590 Distribution and Closing Estate

(a) When it is made to appear to the Court that an estate is ready to be distributed, the Court shall order such according to the rules of intestate succession and this Code.

(b) The estate shall be closed and the Administrator dismissed and his or her bond released upon the filing of receipts and an affidavit showing the estate is fully distributed, and after being fully administered, is now' ready to be closed.

Subchapter VI Probate of Wills

1.32.600 Duty to Present Will for Probate

Every custodian of a will shall deliver the will to the Trial Court within 30 days after receipt of information that the testator has passed. Any will custodian who fails or neglects to do so shall be liable for damages sustained by any person injured thereby.

1.32.610 Proving, Contesting and Admitting Will

(a) Proof of Will.

(1) Upon initiating the probate of an estate, the will of the decedent shall be filed with the Court. The will may be proven and admitted to probate by filing the affidavit of an attesting witness, which identifies such will as being the will which the decedent executed and declared to be his or her last will.

(2) If the evidence of none of the attesting witnesses is available, the Court may allow proof of the will by testimony or other evidence that the signature of the testator or at least one of the witnesses is genuine.

(b) Contest of Will.

(1) At any time within 90 days after a will has been admitted to probate, or within such time as the Court shall establish in the case of an exempt estate, any person having an interest in the decedent's estate may contest the validity of the will. Notice of such contest shall be made directly to the Court. In the event of a will contest, the Court shall take no further action with respect to the probate of the estate, but shall set a day and hour for hearing on the will contest.

(2) Relevant evidence shall be presented at the will hearing concerning the decedent's capacity to execute a valid will and the circumstances surrounding its execution. Every reasonable effort shall be made to procure the testimony of the attesting witnesses to the will, or if their testimony is not reasonably available, an effort shall be made to identify signatures to the will through other evidence.

(c) Admission of Contested Will to Probate. Upon considering all relevant evidence concerning the will, the Court shall enter an order affirming the admission of the will to probate or rejecting such will and ordering that the probate of the decedent's estate proceed as if the decedent had died without executing the will.

1.32.620 Petition for Letters Testamentary

A petition for letters testamentary may be made by any person having possession of a decedent's will. The petition must be in writing, signed by the petitioner, and shall state the basis for the Court's jurisdiction, the names of the heirs of the decedent, if known, and the name or names of any person specified in the will as Executor and the address of such person, if known. The original copy of the will shall be submitted to the Court with the petition.

1.32.630 Qualification of Executor

The Court shall appoint the Executor as Administrator of the decedent's estate if found qualified and competent by the Court. If the Executor is not found by the Court to be competent, it shall appoint an Administrator who shall be a competent adult and preference shall be given to the surviving spouse, child of the decedent over 18 years of age with preference given in descending order of age, other blood relatives in order of their closeness of relationship, any adult Tribal member, or any adult person.

1.32.640 Appointment of Administrator

(a) Upon receipt of a petition for letters testamentary, the clerk shall schedule a hearing at which an Administrator will be appointed and letters testamentary authorized. The hearing shall be scheduled and notice provided to interested parties in accordance with Section 1.32.090. Notice of hearing shall be made by the petitioning party to all persons named as takers under the will, and to all known heirs of the decedent if different from the named beneficiaries and also posted in a conspicuous place in the Court building.

(b) At the hearing, the Court shall first determine the validity of the decedent's will and then appoint an Administrator to administer the estate according to the terms of this Code and the decedent's will.

(c) Letters testamentary shall be granted to the person appointed as Administrator upon his or her taking an oath, to be prescribed by the Court, to the effect that the Administrator will faithfully and honestly administer the estate, and upon the Administrator filing of bond, if required.

1.32.650 Duties of Administrator; Bond

The duties of the Administrator shall be the same as those prescribed in Section 1.32.500(d) for the Administrator of an intestate estate and the Administrator shall file a bond in a like manner and subject to the same exceptions.

1.32.660 Creditors

Notice to creditors, determination of the validity of claims, and payment of claims shall be handled as prescribed for intestate estates (Chapter V).

1.32.670 Accounting

Prior to the distribution of the estate remaining after payment of all just claims and priority payments, the Administrator shall submit to the Court for approval an accounting of all receipts and disbursements from the estate, showing the present status of the estate and that distribution of the estate can commence, and also showing the computation of any attorney's and/or Administrator's fees involved for which approval for payment is sought.

1.32.680 Distribution and Closing Estate

(a) When it is made to appear to the Court that distribution of an estate can commence, the Court shall order such distribution according to the provisions of the decedent's will or the rules of intestate succession, whichever is applicable, and according to the rules set forth in this Code.

(b) The estate shall be closed and the personal representative of the estate dismissed and his or her bond, if any, released upon filing with the Court receipts showing that the estate is fully distributed, and also upon filing the personal representative's affidavit that the estate is fully administered and ready to be closed.

1.32.690 Distribution: Order in Which Assets Appropriated; Abatement

(a) Except as provided in paragraph b, below, and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

(1) Property not disposed of by the will.

(2) Residuary devises.

(3) General devises.

(4) Specific devises.

(b) For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(c) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in paragraphs a and h, above, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(d) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

1.32.700 Property Discovered After Estate Closed

An estate may be reopened whenever necessary to dispose of a decedent's property discovered after his or her estate has been closed. The Court shall order distribution of the property to the person or persons entitled thereto after making whatever orders appear necessary to ensure a just distribution of the after discovered property.

Chapter 1.33 Curfew

1.33.010 General Provisions

(a) Purpose. The purpose of this code is to provide for a curfew for persons under age 18 within the Bad River Reservation and enforce parental control over and responsibility for persons under age 18.

(b) Authority. This code is enacted pursuant to Article VI, Section 1(q) of the Bad River Tribal Constitution.

(c) Effective Date. This code shall take effect on the day following the date of approval of this code by the Bad River Tribal Council.

1.33.020 Definitions

For the purpose of this code, the following terms shall have the meaning ascribed below:

(a) "Curfew hours" means for any minor under 18 years of age 10:30 p.m. until 5:00 a.m. of the following day on nights proceeding school days, and 11:30 p.m. until 5:00 a.m. of the following day on nights not preceding school days; for any minor under 13 years of age 9:30 p.m. until 5:00 a.m. of the following day.

(b) "Emergency" means an unforeseen combination of circumstances or the resulting state that calls for immediate action. The term includes, but is not limited to, a fire, a natural disaster, an automobile accident, or any situation requiring immediate action to prevent serious bodily injury or loss of life or serious damage to significant property.

(d) "Minor" means any person under 18 years of age.

(e) "Parent" means a person who is:

(1) A natural parent, adoptive parent, or stepparent of another person, or

(2) At least 18 years of age and authorized by a parent or guardian to have the care and custody of a minor.

(f) "Public Place" means any place to which the public or a substantial group of the public has access and includes but is not limited to streets, sidewalks, highways, private residences left open to the public without the presences of adult supervision and the common areas of tribal buildings.

(g) "Remain" means to:

(1) Linger or stay, whether on foot or in a vehicle, or

(2) Fail to leave premises when requested to do so by an owner or person in control of the premises or a law enforcement officer.

(h) "Reservation" means the area within the external boundaries of the Bad River Reservation.

(i) "Tribe" means the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(j) "Law enforcement officer" means any officer of the Bad River Police Department.

1.33.030 Prohibited Activities

(a) It shall be unlawful for a minor to remain in any public place within the Reservation during curfew hours.

(b) It shall be unlawful for a parent or guardian of a minor to knowingly person, or by an insufficient control allow, the minor to remain in any public place within the Reservation during curfew hours.

1.33.040 Exceptions

The activities prohibited by Section 1.33.030 shall not be unlawful in the following circumstances:

(a) When the minor is accompanied by the minor's parent or guardian,

(b) When the minor is engaged in an employment activity, or going to or returning home from an employment activity, without any detour or stop,

(d) When the minor is attending official school activities, activities sponsored by a religious or community organization or other cultural, educational or social events or is going to or returning home from, without any detour or stop, such activity.

1.33.050 Enforcement and Penalties

(a) Enforcement Procedure. Before taking any enforcement action under this chapter, a law enforcement officer shall ask the apparent offender's age and reason for being in the public place. The officer shall not issue a citation under Section 1.33.030 unless the officer reasonably believes that an offense has occurred as provided in this chapter.

(b) Penalty for Violations. Any person found guilty of having violated Section 1.33.030 of this chapter shall be subject to a civil forfeiture of no more than one thousand dollars ($1,000.00) and may be required to perform community service. The period of community service shall not exceed ninety (90) hours.

(c) The Bad River Tribal Court shall have jurisdiction over cases brought to enforce this chapter. Proceedings shall be conducted in accordance with the Bad River Tribal Court Code.

Chapter 1.34 Truancy

1.34.010 General Provisions

(a) Purpose. The purpose of this code is to require the regular attendance at school of all school-age children living on the Bad River Reservation and all tribal children living off the reservation attending school within the Bad River Reservation or Ashland School District.

(b) Authority. This code is enacted pursuant to Article VI, Section 1(q) of the Bad River Tribal Constitution.

(c) Effective Date. This code shall take effect on the day following the date of approval of this code by the Bad River Tribal Council.

(d) Interpretation. In its interpretation and application, the provisions of this code shall be held to be minimum requirements and shall be liberally construed in favor of the tribe and shall not be deemed as a limitation upon, or a repeal of any other tribal power or authority. The Tribe by the adoption of this code does not waive its sovereign immunity in any respect.

(e) Severability. If any section, provision or portion of this code is adjudged to be unconstitutional or invalid by a court of competent jurisdiction, the remainder of this code shall not be affected thereby.

(f) Applicability. This code shall apply to all tribal children living on the Bad River Reservation and their parents or other persons having said tribal children in their care or custody or under their control.

(g) Consent to Tribal Jurisdiction. The Bad River Tribal Court may also exercise its authority and impose penalties under this section where the provisions of subsection (f) do not apply provided that the person charged with the offense consents to the jurisdiction of the Tribal Court. Consent must be knowing, intentional and voluntary. This section shall apply only to:

(1) Non-tribal children living on the Bad River Reservation and their parents or other persons having said children in their care or custody or under their control; and

(2) Tribal children attending school within the Bad River Reservation or Ashland School District living off the Bad River Reservation and their parents or other persons having said tribal children in their care or custody or under their control.

1.34.020 Definitions

For the purpose of this code, the following terms shall have the meaning scribed below:

(a) "Adult" means any person 18 years of age or older who is not enrolled in the Ashland School System.

(b) "Child" means any person who is less than 18 years of age, or any person who is less than 19 years of age if attending the Bad River Tribal School, the Lac Courte Oreilles Tribal School or Ashland School District.

(d) "Reservation" means the area within the external boundaries of the Bad River Reservation.

(e) "School" means the Bad River Tribal School, the Lac Courte Oreilles Tribal School or a school in the Ashland Public School District.

(f) "School Attendance" means physical presence of a child in school and includes attending scheduled classes during such hours and on such days as determined by the school or, for students enrolled in Alternative Education Programs, attendance at the place and during hours scheduled by the school for the student, unless excused from such attendance by school policy or state law.

(g) "School Attendance Officer" means an employee designated by a school board under the Bad River Tribal Constitution, Lac Courte Oreilles Tribal Constitution or Wis. Stat. Sec. 118.16 to deal with matters relating to school attendance and truancy.

(h) "School Attendance Policy" means the current policy for school attendance duly adopted by the appropriate school board.

(i) "Tribal Child" means a child who is either (a) an enrolled member of the Tribe; or (b) eligible for enrollment in the Tribe.

(j) "Tribal Court" means the Bad River Tribal Court.

(k) "Truancy" means any absence of part or all one or more days from school during which the school attendance officer, or his agent, has not been notified of the legal cause of such absence by the person having the absent pupil under his or her control during non-school hours. "Truancy" also means intermittent attendance carried on for the purpose of defeating the intent of the tribe's and state's attendance laws (Bad River Truancy Code section 135.3 and Wis. Stat. Sec. 118.5).

(l) "Habitual Truancy" means truant for five (5) days within ten (10) school days or ten (10) truancies within any ninety (90) day school day period within a school year.

(m) "Student" means one who attends school in the Bad River Tribal School, Lac Courte Oreilles Tribal School or Ashland School District.

(n) "Tribe" means the Bad River Band of Lake Superior Chippewa.

1.34.030 Compulsory School Attendance

(a) School Enrollment Required. Except as excused under a school policy governing school attendance or the state compulsory attendance law (Wis. Stat. Sec. 118.15), any person having under their control a school aged child shall enroll the child in school.

(b) Requirement to Attend School. Except as excused under a school policy governing school attendance or the state compulsory attendance law (Wis. Stat. Sec. 118.15), any person having under their control a school aged child shall enroll the child in school.

(1) Truancy is prohibited.

(2) It shall be unlawful for any person to cause, assist, or enable a child to be truant.

1.34.040 Enforcement and Penalties

(a) The school attendance officer may contact the Home-School Coordinator, Indian Child Welfare Worker, or other appropriate party to assist in the enforcement of the provisions of this code.

(b) The school must document the following steps before the Tribal Court hears a truancy petition:

(1) First Incident: The School Attendance Officer shall give verbal warning and send a letter to the parent/legal guardian/legal custodian and to the mentor (if appropriate).

(2) Second Incident: The School Attendance Officer is to contact the Home-School Coordinator, Indian Child Welfare Worker or other appropriate party to set up and document a meeting with the child and parent/legal guardian/legal custodian. The purpose of the meeting shall be to identify and resolve behaviors that are in violation of the provisions of this code through an appropriate plan of action, which shall be agreed to and signed by all parties involved. The following steps shall be required in developing the action plan:

(A) Provide an opportunity for educational counseling to the child to determine whether a change in the child's curriculum would resolve the child's truancy and have considered curriculum modification.

(B) Evaluate the child's curriculum to determine whether learning problems may be a cause of the child's truancy and, if so, take appropriate action or make appropriate referrals.

(C) Conduct an evaluation to determine whether social problems may be the cause of the child's truancy and, if so, take appropriate action or make appropriate referrals.

(D) A copy of the plan of action shall be given to the parent/guardian and the principal of the child. Included in the action plan shall be a schedule for consistent, timely review to evaluate and monitor the effectiveness of said plan.

(3) Third Incident: Refer to Tribal Court. A checklist documenting evaluation of the steps required in section must be submitted to the court upon referral. Once referred to Tribal Court, the child's parent(s)/legal guardian(s)/legal custodian(s) shall be summoned in accordance with Bad River Tribal Court Code. If summoned to Tribal Court, appearance is mandatory by both the child and the parent/legal guardian/legal custodian.

(4) The designated school official or their agent may issue citations to any child who violates the Bad River Truancy Code, to appear in the Tribal Court.

(5) Each incident of truancy may constitute a separate offense.

1.34.050 Penalties

(a) A child or adult who violates this chapter shall be subject to the following:

(1) Any child convicted of truancy under section shall be subject to a minimum penalty of community service hours equal to the number of school hours truant, with a maximum civil money penalty of $25.00 and/or seven (7) community service hours per incident of truancy.

(2) Any child who is convicted of aiding a child's truancy shall be subject to a penalty of not more than $50.00.

(3) Any adult who is convicted of aiding a child's truancy shall be subject to a penalty of not less than $35.00, but not to exceed $500.00.

(4) In addition to the imposition of civil forfeitures and community service hours for violations of this chapter, the Tribal Court may impost other remedies, including but not limited to: alcohol assessment and counseling, home detention, limitations on the use of public facilities within the exterior boundaries of the Bad River Reservation.

(b) If the Tribal Court determines a child is habitually truant, the court may order the Indian Child Welfare Department and/or Human Service Agencies to initiate an in-depth investigation into the child's background to determine if a child-in-need-of-care petition should be filed.

(c) Nothing herein shall prohibit the referral of a tribal child to the Child Welfare office for the filing of a child welfare petition under Chapter 1.25 of the Bad River Code of Laws. A child welfare petition may be filed regarding any tribal child who has been truant for five (5) days or more in any three (3) month period.

(d) The Tribal Court shall have jurisdiction over cases brought to enforce this code. Proceedings shall be conducted in accordance with the Bad River Tribal Court Code.

Chapter 1.35 Domestic and Family Violence Code

1.35.010 Title, Statement of Purpose and Definitions

(a) Title. This code may be cited as the "Domestic and Family Violence Code."

(b) Statement of Purpose. The purpose of this code is to:

(1) Eliminate barriers to meeting the safety and other needs of victims of family violence;

(2) To hold batterers accountable for their actions; and

(3) To enhance the provision of services to victims and their batterers.

(c) Construction. This chapter shall be liberally construed to effect the purposes stated above and shall be interpreted to comport with the customs and traditions of this Tribe. If tribal law, customs and traditions are inconclusive in any matter arising under this chapter, then other tribal law, federal law and, as a last resort, the law of the State of Wisconsin, may be used for guidance.

(d) Definitions. As used in this chapter the following terms shall have the meanings given below:

(1) Domestic and Family Violence

(A) Domestic and family violence means:

(i) intentional infliction of physical harm to a family or household member;

(ii) an act, word, gesture or any other behavior that places a family or household member in fear of imminent physical harm;

(iii) intentional use of force, coercion, threat, intimidation, humiliation, or confinement which results in mental or emotional harm to a family or household member; or

(iv) causing a family or household member to engage involuntarily in sexual activity by force, coercion, threat, intimidation, humiliation, confinement, or administering alcohol or drugs to the family or household member without their knowledge.

(B) Imminent physical harm as used above refers to such physical harm that is close or near at hand, that is impending, perilous, or on the point of happening. It does not require that such physical harm be immediate or without delay after the behavior that places the victim in fear.

(2) Family or household member means:

(A) adults and/or minors who are current or former spouses;

(B) adults and/or minors who are living together or have lived together and who have engaged in a sexual relationship;

(C) adults and/or minors who are involved or have been involved in a sexual or otherwise intimate, ongoing relationship including persons who are identified in the community as boyfriend and girlfriend;

(D) adult relatives who are living together or who have lived together;

(E) adults and/or minors who have a child, including an unborn child, in common regardless of whether the parents of the child have married or have lived together at any time;

(3) Exclusions: Domestic and family violence in the parent-minor child relationship is not covered in this Code. The occurrence of domestic and family violence in that relationship is covered in Chapter 1.25, the Children's Code of this Tribe or through the juvenile and children's codes of the State of Wisconsin.

1.35.020 Jurisdiction & Civil Nature of This Code

(a) Jurisdiction & Authority to Enact This Code. This Code is adopted pursuant to Article VI, section 1(q) of the Bad River Band's Constitution and pursuant to an exercise of this Tribe's inherent sovereign authority.

(b) Jurisdiction of the Court & Civil Nature of This Code. The jurisdiction of the Tribal Court shall be civil in nature and shall include the power to issue all orders necessary to insure the purposes and provisions of this Code are put into effect. This includes the power to enforce subpoenas, orders of contempt, and any other orders as appropriate.

(c) Availability of Criminal Penalties. The provisions of this Code do not replace the criminal penalties and procedures available under state law for an act of domestic and family violence.

1.35.030 Civil Orders for Protection

(a) Who May Petition the Court. A petition to obtain an order for protection under this section may be filed by:

(1) A person who is subject to the jurisdiction of this Tribe's Court and who has been a victim of domestic and family violence may file a Petition for an order for protection against a family or household member who commits an act of domestic and family violence.

(2) A parent, guardian, or other representative may file a Petition for an order for Protection on behalf of a minor victim against the family or household member who commits an act of domestic violence.

(3) No filing fee, bond, or other payment shall be required from the victim for the filing of a petition for an order for protection under this Code. If an alleged perpetrator has been arrested for the offense of domestic violence, the Court or arresting law enforcement officer shall advise the alleged victim of the right to file a petition under this section without cost.

(b) Contents of the Petition.

(1) The petition shall include membership status or any other information necessary to establish jurisdiction of the Court; the petitioner's name and address at the time of the incident of domestic and family violence; the name, address, and relationship of the family or household member who is the respondent; a description of the specific facts and circumstances justifying the relief requested; the relief requested; and the current location of the respondent, if known.

(2) The current location of the petitioner shall not be released by the Court except on petitioner's written request.

(3) The petition shall also state the nature of any other legal matter pending regarding the petitioner or the respondent; for example, criminal charges, child protection proceeding, and divorce.

(4) The petition may include a request that the court arrange for law enforcement to be present at the time of the hearing.

(1) The Clerk of Court or other designated person shall provide to a person requesting an Order for Protection;

(A) a standard petition form with instructions for completion;

(B) all other forms required to petition for an order for protection, such as those needed for service of process;

(D) provide written notice to the victim identifying the nearest available provider of shelter and advocacy services.

(2) In order to facilitate enforcement under full faith and credit provisions of state law the Clerk of Court or other designated person shall send an authenticated copy of the emergency order for protection and the order for protection to the local law enforcement agency or agencies and the circuit court clerk for the county where respondent is located within one business day of the issuance of the order.

(d) Emergency Orders for Protection.

(1) The Court shall immediately grant an ex-parte emergency order for protection if, based on the specific facts stated in the petition, there is reasonable grounds to believe that the petitioner is in danger of domestic and family violence occurring prior to a hearing on the petition. An allegation of a recent incident of domestic and family violence constitutes reasonable grounds to believe the petitioner is in danger.

(2) The emergency order for protection may include the following relief:

(A) prohibit the respondent from committing or threatening to commit acts of domestic and family violence against the petitioner and the petitioner's family and household members;

(B) prohibiting the respondent from contacting or communicating with the petitioner directly or indirectly;

(D) removing and excluding respondent from the petitioner's place of employment and other locations frequented by petitioner; and

(E) such other relief as the Court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member.

(3) The emergency order for protection shall be served with the notice of hearing on the respondent and shall expire at the time of the hearing.

(e) Notice to Respondent & Other Interested Parties. The Court shall cause an emergency order for protection, along with notice of hearing, notice of rights and a copy of the petition, to be served on the respondent immediately. Service must be made by posted notice if personal service cannot be completed within twenty four (24) hours.

(f) Hearing.

(1) The Court shall hold a hearing on the petition for an order for protection within seven (7) days of the filing date of the petition.

(2) The Court may extend the time for a hearing once for up to fourteen (14) days upon consent of the parties or upon finding that respondent has not been timely served a notice of hearing.

(g) Remedies Available in an Order for Protection.

(1) The Court may grant the following relief in an order for protection if requested by the petitioner and after notice and hearing, whether or not the respondent appears:

(A) prohibit the respondent from threatening to commit or committing acts of domestic or family violence against the petitioner;

(B) prohibit the respondent from harassing, telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, or through others;

(C) remove and exclude respondent from petitioner's residence, or if Respondent owns or leases the residence and the petitioner has no legal interest in the residence, then the Court may order the respondent to avoid the residence for a reasonable length of time until the petitioner relocates;

(D) remove and exclude respondent from petitioner's place of employment at any time petitioner is present;

(E) remove and exclude respondent from other specified locations frequented by petitioner;

(F) remove and exclude respondent from specified public social events and activities;

(G) award temporary custody or establish temporary visitation rights with regard to minor children of the respondent on a basis which gives primary consideration to the safety of the claimed victim of domestic violence and the minor children;

(H) provide for child support and temporary support for the person having custody of the children in any temporary custody order;

(I) award temporary use and possession of property of the respondent;

(J) restrain one or both of the parties from transferring, encumbering, concealing, or disposing of property except as authorized by the Court and require that an accounting shall be made to the Court of all such transfers, encumbrances, dispositions, and expenditures;

(K) refer minors who are family or household members for assessments and services through the Indian Child Welfare Department, health services program, or other tribal program;

(L) require respondent to participate in alcohol and other assessments and to participate in treatment where the treatment program meets the State of Wisconsin's batterer's treatment standards;

(M) limit or prohibit respondent from using or possessing a firearm or other weapon as specified by the Court;

(N) require respondent to reimburse the petitioner or any other person for any expenses associated with the domestic or family violence; including but not limited to medical expenses, counseling, shelter, and repair or replacement of damaged property;

(O) require respondent participate in community service, such as cutting wood or providing other services for elderly members of the Tribe;

(P) require that notice of respondent's act(s) of domestic and family violence be publicly posted;

(Q) notify the parties that willful violation of any provision of the order constitutes contempt of court punishable by a fine or imprisonment or both and constitutes a violation of this chapter for which civil penalties may be assessed; and

(R) any other relief as the Court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member.

(2) An order for protection shall not contain any provisions which impose requirements on a victim of domestic and family violence. The Court may recommend services for the victim and shall verify that the victim is aware of locally available shelter facilities.

(3) The Court shall not grant a mutual order for protection to opposing parties.

(4) The Court shall not deny a petitioner the relief requested solely because of a lapse of time between an act of domestic or family violence and the filing of the petition.

(h) Service of Order for Protection. Orders for protection are to be served personally upon the respondent in Court or by a law enforcement officer. If the respondent cannot be located, the order will be mailed by certified mail to the respondent's last known address, and upon application with the Court, notice will be posted.

(i) Copy to Law Enforcement Agency. Each order for protection granted pursuant to Section 1.35.030(d) of this chapter and each order issued under Section 1.35.030(g) of this chapter shall be forwarded immediately to the local law enforcement agency or agencies and the circuit court clerk for the county where the respondent is located.

(j) Duration, Extension, and Modification of Orders for Protection.

(1) The provisions of the order for protection shall remain in effect for the period of time stated in the order, not to exceed two (2) years, unless extended by the Court at the request of any party or the request of the Domestic Abuse Program.

(2) An order for protection may be modified or withdrawn following notice and hearing, on the Court's own motion or upon the request of either petitioner or respondent if;

(A) assessments or treatments ordered by the Court have been completed;

(B) respondent demonstrates behavioral changes which eliminate the risk of a recurrence of acts of domestic and family violence as verified by treatment providers or other independent sources identified by the Court; or

(C) the Court determines the safety needs of the petitioner and other family or household members are provided for by the modification or withdrawal of the order for protection.

(3) If respondent is excluded from petitioner's residence or ordered to stay away from petitioner, an invitation by the petitioner to do so does not waive or nullify an order for protection.

(k) Enforcement and Penalties for Violation. Where respondent has violated an order for protection, the Court may order additional and other remedies as provided in Section G., above and may impose such penalties as are deemed necessary by the Court given the severity of the violation of the order. Penalties include, but are not limited to those available for contempt, fines, assessments of court costs and fees, and exclusion from tribal offices and businesses.

(l) Full Faith & Credit.

(1) Any protection order that is consistent with subsection (2) of this section by the court of one state or Indian tribe (the issuing state or Indian tribe) shall be accorded full faith and credit by this Tribe and enforced as if it were the order of this Tribal Court.

(2) A protection order issued by a state or tribal court is consistent with this subsection if:

(A) such court has jurisdiction over the parties and matter under the law of such state or tribe; and

(B) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by the issuing state's or tribe's law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.

(3) A protection order issued by a state or tribal court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if:

(A) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or

(B) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.

1.35.040 Intervention & Referrals

(a) Confidentiality for Victims.

(1) A victim of domestic abuse may refuse to disclose and may prevent any volunteer or employee of a program for victims of domestic abuse from disclosing, the content of oral communication and written records and reports concerning the victim.

(2) This privilege may be waived only by the victim. It must be in writing and must identify what information may be disclosed, to whom, and for what purpose. Such a waiver is not valid after thirty (30) days or after the victim revokes the waiver.

(3) This privilege does not relieve a person from a duty imposed under the Indian Child Protection and Family Violence Act, codified as Title 18, United States Code §1167, or Wisconsin Statutes Chapter 48 to report child abuse or neglect or from providing evidence about child abuse or neglect in State Court pursuant to proceedings under Wisconsin Statutes Chapters 48 and 938 and in Tribal Court under Chapter 1.25, Children's Code.

(4) These provisions on confidentiality for victims shall not prevent the disclosure of information compiled about incidents of domestic and family violence which protects the identity of the victim and family or household members of the victim.

(b) Intervention for Batterers. Where services are provided for batterers pursuant to an order for protection the batterer who is ordered into the program shall be required by the Court to sign the following releases:

(1) allowing the provider of services to inform the victim and victim's advocate whether or not the batterer is in treatment pursuant to the order, whether or not the batterer is in compliance with treatment provisions, and whether or not the safety of the victim and family or household members of the victim is at risk;

(2) allowing prior and current treating agencies to provide information about the batterer to the service provider; and

(3) allowing the service provider to provide information about the batterer to relevant legal entities including courts, parole and probation officers and child protective services.

1.35.050 Severability

If any part or parts, or the application of any part, of this chapter is held invalid, such holding shall not affect the validity of the remaining parts of this chapter. The Tribal Council hereby declares that it would have passed the remaining parts of this chapter even if it had known that such part or parts or the application of any part would be declared invalid.

Chapter 1.36 Disorderly Conduct Code

1.36.010 Title, Statement of Purpose and Definitions

(a) Title. This Code may be cited as the "Disorderly Conduct Code."

(b) Statement of Purpose. The purpose of this Code is to:

(1) Eliminate offensive behaviors and maintain peace within the Bad River community;

(2) To hold violators accountable for their actions;

(3) To promote health, safety, and well-being to anyone within the boundaries of the Bad River Reservation.

(c) Construction. This chapter shall be liberally construed to effect the purposes stated above and shall be interpreted to comport with the customs and traditions of this Tribe. If Tribal Law, customs, or traditions are inconclusive in any matter arising under this chapter, then other Tribal Law, Federal Law, and as a last resort, the law of the State of Wisconsin, may be used for guidance.

(d) Definitions. As used in this chapter the following terms shall have the meanings given below:

(1) Disorderly Conduct

Any person subject to the jurisdiction of the Bad River Reservation who is found, by a preponderance of the evidence, to have engaged intentionally in any of the following behaviors on the Reservation, knowing, or having reasonable grounds to know that such behavior will, or will tend to alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a civil misdemeanor, and is subject to a fine.

Disorderly Conduct means:

(A) Engaging in brawling or fighting; or

(B) Disturbing a lawful meeting or assembly of persons without lawful authority; or

(C) Engaging in offensive, obscene, abusive, or abusive conduct tending to reasonably arouse alarm, anger, or resentment in others or uses offensive, obscene, or abusive words which by their very utterance, inflict injury or tend to incite and immediate breach of the peace; or

(D) Blocking vehicular or pedestrian traffic without lawful authority; or

(E) Preventing the free ingress or egress to public or private places without lawful authority; or

(F) Making a false report or warning of a fire, impending explosion or other catastrophe in a place in which such an occurrence would endanger human life; or

(G) Appearing in a public or private place in an intoxicated and disorderly condition; or

(H) Creating a disturbance, while hosting or attending celebration, so as to disrupt the peacefulness of the neighborhood or community through loud noises and/or fights or other obnoxious behavior, or

(I) Playing his/her music from any car, house or music player so as to create a disturbance to the neighbors or community members, between the hours of 10:00 p.m. and 8:00 a.m. Creating a disturbance or disrupting the peace shall be determined by the enforcement officer(s) from the complainant's location, or shall be determined using a decibel meter reading of 90-95 dB, or be determined by whether the noise can be heard from a distance of 500 feet or more from the disturbance.

an amendment relating to: Public Health Quarantine Order dated August 6, 2020 enforcement

(J) Public Health Emergency in Response to the SARS - Cov – 2 virus. Quarantine. If the Public Health Nurse reasonably believes or is informed of the existence of COVID – 19 infection, the Nurse shall immediately investigate and make or review the diagnostic report of a physician, the notification or confirmation report of a patient or a parent or caretaker of a patient and quarantine, isolate, require restrictions or take other action pursuant to the Public Health Order dated August 6, 2020.

an amendment relating to: applying the Public Health Release dated July 20, 2020 regarding face coverings and masks to public or business space and outdoors where unable to maintain physical distance and enforcement.

(K) Public Health Emergency in Response to the SARS - Cov - 2 virus. All persons age 5 and older shall wear a mask or other face covering or mask over their nose and mouth when in the following situations: inside any public or business space; and while outdoors in public spaces and unable to maintain a 6-foot distance between individuals.

1.36.020 Enforcement

(a) The Tribal Police shall have the authority to investigate any disturbance on the Reservation. Upon reasonable suspicion, which may be based on the complaint of another person, that any person subject to the jurisdiction of the Bad River Reservation is engaging in or has engaged in disorderly conduct as defined in Section 1.36.010D. of this chapter, the Tribal Police shall determine whether a citation according to Section 1.36.030 of this chapter shall be issued.

(b) As used in this section, "Reservation" means lands owned or held in trust for the Bad River Tribe.

(c) Nothing contained in this section shall be construed as a waiver of sovereign immunity of the Bad River Band of Lake Superior Chippewa.

an amendment relating to: Public Health Quarantine Order dated August 6, 2020 enforcement

(d) The Tribal Police shall have the authority to execute the Public Health Order dated August 6, 2020 and a Public Health Nurse quarantine, isolation, restriction or other action if the quarantine or other restriction is violated, including removing a person to a designated place.

1.36.030 Penalties

Any person who violates this chapter shall be subject to the following:

(a) A civil forfeiture not less than $50.00 but not to exceed $500.00 for the first offense; and/or

(b) A civil forfeiture not less than $100.00 but not to exceed $1000.00 for a second offense within a five (5) year period; and/or

(c) A penalty other than those stated above as deemed appropriate by the Court, to be determined on a case-by-case basis.

Chapter 1.37 Rules of Evidence; General

1.37.010 Scope

These rules shall apply to all proceedings in Tribal Court. The Tribal Court, subject to the decisions of the Court of Appeals, shall interpret and apply these rules. The policies and rationales underlying the Federal Rules of Evidence and the Wisconsin Rules of Evidence may be cited as persuasive authority, but the Federal Rules and Wisconsin Rules shall not be controlling.

1.37.020 Rulings on Evidence

No appeal may be predicated on an evidentiary ruling unless a substantial right of a party is affected and

(a) An objection or motion to strike is timely made, stating the specific ground of objection, unless the specific ground was clear from the context; and

(b) In the case of a ruling excluding evidence an offer of proof in the form prescribed by the court is made.

Chapter 1.38 Rules of Evidence; Relevancy

1.38.010 Definitions

"Relevant evidence" is any evidence tending to make the existence of any fact of consequence more or less probable.

1.38.020 Admissibility

Only relevant evidence is admissible.

1.38.030 Exclusion of Relevant Evidence - General Rule

Relevant evidence may be excluded if its admission would violate any other section of this chapter, or if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or if it would be cumulative, a waste of time, or cause undue delay.

1.38.040 Exclusion of Relevant Evidence - Specific Rules

Evidence of the following is not admissible, even if relevant:

(a) Statements made in settlement negotiations or mediation, compromises, or offers to compromise, when offered to prove liability or the lack thereof.

(b) Corrective measures taken after an event, which would have made the event less likely to occur, when offered to prove negligence or culpability.

(c) Payments, offers to pay, and promises to pay for medical, hospital, or disability expenses, when offered to prove liability.

(d) Pleas of no contest or subsequently withdrawn pleas of guilty, in any court, when offered against the person making the plea, to prove liability.

(e) Existence of insurance against liability, or lack thereof, when offered to prove negligence or culpability.

Chapter 1.39 Rules of Evidence; Privileges

1.39.010 General

(a) Except as provided by this section, the Indian Civil Rights Act, or the United States constitution, as applicable, no person is privileged to refuse to be a witness, to refuse to disclose any matter, to refuse to produce any object or writing, or to prevent another from doing any of the above.

(b) A confidential communication is one not intended to be disclosed to any third party except the agents or colleagues of the person to whom the disclosure is made, in the course of furthering the purpose for which the disclosure was made.

(c) A privilege may be asserted by the person making the communication, or by the person making the communication, or by the person to whom the communication was made, on behalf of that person, unless the person making the communication has validly waived the privilege.

(d) Any person making a communication may waive the privilege by so testifying in open court.

(e) No inference shall be drawn from the assertion of a lawful privilege.

1.39.020 Attorney-Client Privilege

A client has a privilege to refuse to disclose and to prevent any other person from disclosing any confidential communication between the client and the attorney or attorney's agent, made for the purpose of obtaining legal assistance, except:

(a) When such communication was used to commit or plan a crime.

(b) When two or more parties claim some right through the same deceased client, and the communication is relevant to the claim.

(c) When the communication is relevant to a claim by the client against the attorney or by the attorney against the client.

(d) When the attorney attested to a document and a communication is relevant to an issue related to the attested document.

(e) When an issue exists between two or more joint clients, and a relevant communication to the attorney was made in their common interest by one of the clients.

1.39.030 Health Care Provider-Patient Privilege

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between the patient and a physician, registered nurse, licensed psychologist, psychiatric social worker, or chiropractor, or any person reasonably believed by the patient to be one of the above, made for the purpose of obtaining diagnosis or treatment of the patient's physical, mental or emotional condition, except:

(a) When the physical, mental, or emotional health of a patient is relied on by the patient as an element of his claim or defense.

(b) When the court orders a physical, mental, or emotional examination of the patient, and the results of the examination, including any review of records conducted, are offered in the proceeding for which the examination was ordered.

(c) When an examination of a physically or emotionally abused or injured child creates a reasonable ground for an opinion that the condition was other than accidentally caused, or was inflicted by another.

(d) When the results of chemical tests for intoxication or blood alcohol concentration are offered.

1.39.040 Husband-Wife Privilege

A person has a privilege to prevent his or her spouse or former spouse from testifying against him or her as to any confidential communication made by him or her to the other during the marriage, except when both spouses are parties to the action.

1.39.050 Spiritual Advisor Privilege

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication to his or her spiritual advisor in the advisor's capacity as such.

1.39.060 Honesty Testing Devices

A person has a privilege to refuse to disclose, and to prevent another from disclosing, any oral, written, or other communication made in the course of, and any results deriving from, any polygraph, voice stress analysis, psychological stress evaluator, or other test purporting to test honesty, in which the person was the test subject.

1.39.070 Ballot

A person has a privilege to refuse to disclose and to prevent another person from disclosing his or her vote in any secret ballot, unless the ballot was cast illegally.

Chapter 1.40 Rules of Evidence; Witnesses

1.40.010 Oath

Prior to testifying, every witness shall indicate by solemn oath or affirmation, in a form prescribed by the Tribal Court, that he or she shall testify truthfully. A child or other person who may not understand the significance of an oath or affirmation may be allowed to testify if the court is satisfied that the witness understands the difference between truth and falsity and understands that he or she must tell the truth.

1.40.020 Personal Knowledge

A witness may only testify as to those facts within his or her personal knowledge.

1.40.030 Opinions

A witness may testify as to an opinion or inference only to the extent that the witness's observations, experience, education, and training qualify the witness to offer the opinion or inference.

1.40.040 Judge as Witness

The judge presiding at a trial may not testify as a witness.

1.40.050 Character Evidence

A witness's character for truthfulness may be attacked by evidence of reputation, opinion, or the testimony of the witness on direct or cross-examination, and if so attacked may be supported by evidence of the types listed above.

1.40.060 Impeachment by Conviction of Crime

The credibility of a witness may be impeached by evidence of the witness's conviction of a crime.

1.40.070 Prior Statements

(a) A witness examined about a prior statement made by him or her need not be shown the statement during the examination, but the statement shall be shown to opposing counsel upon completion of that part of the examination.

(b) Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness was examined so as to give him or her an opportunity to explain or deny the statement, or as the interests of justice require.

1.40.080 Court Control

(a) The court shall exercise control over the mode and order of interrogating witnesses to avoid waste of time and to protect witnesses from harassment.

(b) The scope of cross-examination extends to all relevant matters. The court may limit cross examination to those matters inquired into upon direct examination.

(c) Leading questions may not be used on direct examination except in introductory matters, matters not in dispute, or as deemed necessary by the court to develop testimony. A party may call an adverse party or a witness identified with him or her and interrogate him or her by leading questions.

(d) The court may call witnesses on its own motion, subject to cross-examination by the parties, and may interrogate witnesses.

1.40.090 Exclusion of Witnesses

At the request of a party, the court shall order witnesses excluded from the courtroom except while testifying, shall order witnesses to be kept separate from each other, shall order witnesses not to communicate with each other, and shall order such other measures as in the court's discretion shall prevent undue influence or taint upon testimony.

Chapter 1.41 Rules of Evidence; Writings.

1.41.010 Writings Used to Refresh Recollection

(a) A witness may refer to any writing if necessary or helpful to refresh his or her recollection for the purpose of testifying, and any writing so referred to, either before or during testimony, shall be made available to an adverse party upon conclusion of that part of the examination.

(b) An adverse party may cross-examine the witness on the writing, and may introduce in evidence those portions of the writing that relate to the witness's testimony.

(c) If a claim is made that for any reason the writing cannot be made available to an adverse party, the judge shall examine the writing in camera and shall make such orders as justice requires, including striking all testimony of the witness subsequent to the use of the writing.

1.41.020 Recorded Recollection

Any writing shown to have been made by the witness when the matter was fresh in his or her mind, and shown to reflect that knowledge correctly, concerning a matter about which the witness now has insufficient recollection to enable him or her to testify fully and accurately, is admissible.

1.41.030 Specific Writings

Writings of the character set forth in this section are admissible, subject to the authentication requirements of Section 1.41.040.

(a) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a

regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

(b) Health care records.

(1) "Health care records" are those records maintained by a hospital, physician, licensed psychologist, psychiatric social worker, or dentist.

(2) When witness unnecessary. A custodian or other qualified witness is unnecessary if the party who intends to offer hospital records into evidence at a trial or hearing files with the court at least 10 days before the trial or hearing an accurate, legible and complete duplicate of the hospital records for a stated period, certified by the record custodian, and notifies all appearing parties at least 10 days before the trial or hearing that such records for the stated period have been filed.

(3) Subpoena limitations. Hospital records are subject to subpoena only if the hospital is a party to the action, or if authorized by an ex parte order of a judge for cause shown and upon terms, of if upon a properly authorized request for an attorney, the hospital refuses, fails, or neglects to supply within 2 business days a legible certified duplicate of its records at a minimum charge of $5 per request. The rate shall be 10 cents per record page and $2 per x-ray copy.

(c) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state 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.

(d) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the record thereof was made to a public office pursuant to requirements of law.

(e) Records of religious organizations. Statements of births, marriages, divorces, deaths, whether a child is marital or non-marital, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(f) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(g) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings or rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the lime.

(h) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original record document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office.

(i) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(j) Statements in ancient documents. Statements in a document in existence 20 years or more whose authenticity is established.

(k) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(l) Learned treatises. A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as an expert in the subject.

(1) No published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art may be received in evidence, except for impeachment on cross-examination, unless the party proposing to offer such document in evidence serves notice in writing upon opposing counsel at least 40 days before trial. The notice shall fully describe the document which the party proposes to offer, giving the name of such document, the name of the author, the date of publication, the name of the publisher, and specifically designating the portion thereof to be offered. The offering party shall deliver with the notice a copy of the document or of the portion thereof to be offered.

(2) No rebutting published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art shall be received in evidence unless the party proposing to offer the same shall, not later than 20 days after service of the notice described in par. (a), serve notice similar to that provided in par. (a) upon counsel who has served the original notice. He shall deliver with the notice a copy of the document or of the portion thereof to be offered.

(3) The court may, for cause shown prior to or at the trial, relieve the party from the requirements of this section in order to prevent a manifest injustice.

(m) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of no contest), adjudging a person guilty of a crime to prove any fact essential to sustain judgment, or to impeach. The pendency of an appeal may be shown but does not affect admissibility.

(n) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(o) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered, by a witness who is now physically unavailable to testify, refuses to testify, or lacks memory sufficient to testify on the subject.

1.41.040 Authentication

(a) No writing, photograph, or other documentary evidence may be admitted unless evidence is supplied sufficient to prove that the matter in question is what it purports to be.

(b) No extrinsic evidence of authenticity is required for any of the following:

(1) Public documents under seal. A document bearing a seal purporting to be that of any tribe of or of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department officer or agency thereof, and a signature purporting to be an attestation or execution.

(2) Public documents not under seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in sub. (1), having no seal, if the public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Public documents of foreign countries. A document purporting to be executed or attested in his official capacity by a person authorized by the law of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the judge may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make certification, by certificate complying with sub. (1), (2) or (3) or complying with any statute or rule adopted by the supreme court.

(5) Official publications. Books, pamphlets or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control of origin.

(8) Acknowledged and authenticated documents. Documents accompanied by a certificate of acknowledgment under the hand and seal of rubber stamp of a notary public or other person authorized by law to take acknowledgments or any public officer entitled by virtue of his public office to administer oaths or authenticated or acknowledged as otherwise authorized by statute.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by the Uniform Commercial Code.

(10) Health care records. Records filed with the court pursuant to Section 1.41.030(b).

(11) Subscribing witness's testimony. The testimony of a subscribing witness is not necessary to authenticate a writing that is otherwise admissible.

Chapter 1.42 Rules of Evidence; Hearsay

1.42.010 Definitions

(a) Statement. A "statement" is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Hearsay exclusions. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(A) Inconsistent with his testimony, or

(B) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or

(2) Admission by party opponent. The statement is offered against a party and is:

(A) His own statement, in either his individual or a representative capacity, or

(B) A statement of which he has manifested his adoption or belief in its truth, or

(D) A statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or

(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

(3) Any writing specified in Section 1.41.030.

1.42.020 Hearsay Rule

Hearsay is admissible only if facts and circumstances indicate that it has a sufficiently high degree of trustworthiness to justify its admission.

Chapter 1.43 Rules of Evidence; Judicial Notice

1.43.010 Adjudicative Facts

The court may at any time in a proceeding take judicial notice of an adjudicative fact that is not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the court or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questions.

1.43.020 Foreign Law

The court may take judicial notice of any foreign law properly authenticated.

1.43.030 Legislative Facts

This section does not control the taking of judicial notice of legislative facts.

Chapter 1.44 Powers of Tribal Wardens

1.44.010 Warrants and Process

Any tribal warden may execute and serve warrants and processes issued by the tribal court in the same manner as any law enforcement officer of the State of Wisconsin may serve and execute such state warrants and processes under state law.

1.44.020 Stop and Search

For the purpose of enforcing any natural resource ordinance of the tribe or such other ordinance as the Tribal Council may direct, any tribal warden may stop and board any boat and stop any automobile, snowmobile, or other vehicle, if the tribal warden reasonably suspects there is a violation or breach of such ordinance. Any tribal warden may, with or without warrant, open, enter, and examine all buildings, camps, vessels or boats, wagons, trailers, automobiles or other vehicles snowmobiles, stages, tents, suit cases, valises, packages, and other receptacles and places where the tribal warden has probable cause to believe that game, fish, or other natural products of the Bad River Reservation taken or held in violation or breach of any tribal natural resource ordinance are to be found.

1.44.030 Arrest of Members

Any tribal warden may arrest, with or without a warrant, any tribal member detected in the actual violation, or whom such warden has probable cause to believe guilty of a violation of any tribal natural resource ordinance or such other tribal ordinance as the Tribal Council may direct, whether such violation is punishable by criminal penalties or civil remedial measures, and may take such member before the tribal court and make proper complaint.

1.44.040 Civil Remedial Enforcement

Any tribal warden may issue a citation to any member or non-member if the tribal warden reasonably believes that such person has breached a provision of any tribal natural resource ordinance or such other ordinance as the Tribal Council may direct, and may seize and hold any property authorized to be seized in such ordinance, pursuant to the civil remedial forfeiture provisions of the Tribal Court Code.