11.01.190 Judicial Review

(a)(1) The findings of fact made by the Tribal Council acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section. Within 30 days after the date of an order or award made by the Tribal Council either originally or after the filing of a petition for reconsideration any party aggrieved thereby may be serving a complaint as provided in Bad River Tribal Code Chapter 1.11 and filing the summons and complaint with the clerk of the Bad River Tribal Court commence, in Tribal Court, an action against the Tribal Council for the review of the order or award, in which action the adverse party shall also be made a defendant. If the Tribal Court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, it may extend the time in which an action may be commenced by an additional 30 days.

(2) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon the Tribal Council or agent authorized by the Tribal Council to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the Tribal Court shall mail one copy to each other defendant.

(3) The Tribal Council shall serve its answer within 45 days after the service of the complaint, and, within the like time, the adverse party may serve an answer to the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order referred to in the complaint, with the same effect as if the party had commenced a separate action for the review of the order or award referred to in the complaint, with the same effect as if the party had commenced a separate action for the review thereof.

(4) The Tribal Council shall return to the court all of the documents and papers on file in the matter, and of all testimony which has been taken, and of the Council's order, findings and award. Executive sessions minutes shall not have to be made available to any party. The action may thereupon be brought on for hearing before the court upon the record by either party on 10 days notice to the other; subject however, to the provisions of a law for a change of the place of trial or the calling in of another judge.

(5) Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:

(A) That the Tribal Council acted without or in excess of its powers.

(B) That the order or award was procured by fraud.

(C) That the findings of fact by the Tribal Council do not support the order or award by preponderance of the evidence presented before the Council.

(b) Upon the trial of any such action the court shall disregard any irregularity or error of the Tribal Council unless it is made to affirmatively appear that the plaintiff was damaged thereby.

(c) The record in any case shall be transmitted to the Band within 5 days after expiration of the time for appeal from the order or judgment of the court, unless appeal shall be taken from such order or judgment.

(d) Whenever an award is made against the Band, the General Counsel may bring an action for review thereof in the same manner and upon the same grounds as are provided by sub. (1).

(e) The commencement of action for review shall not relieve the Band from paying compensation as directed, when such action involves only the question of liability as between the Band and one or more insurance companies or as between several insurance companies.

(f) If the Tribal Council's order or award depends on any fact found by the Tribal Council, the court shall not substitute its judgment for that of the Council as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the Tribal Council's order or award and remand the case to the Third Party Administrator or Tribal Benefits Specialist or if the Tribal Council's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.