Title
TITLE 12 - CIVIL PROCEDURE (INCLUDES THE 2019 POCKET PART + AMENDMENTS)
Body
*NOTICE: This document is provided as a courtesy. This document includes amendments to the Title 12 2019 Pocket Part as listed below and have not yet been officially codified. To ensure accuracy, anyone using this document should compare it to the official amendments available at: <https://cherokee.legistar.com/Legislation.aspx>
Includes: LA 28-21
TITLE 12
CIVIL PROCEDURE
Chapter
1. Civil Procedure
2. Unfair and Deceptive Practices
3. Interest on Judgments
5. Civil Protective Orders
9. Cherokee Nation Judgment Fund Act
10. Harassment
Oklahoma Statutes
Civil procedure, generally, see 12 O.S. § 1 et seq.
Code of Federal Regulations
Courts of Indian Offenses and Law and Order Code,
Appellate proceedings, see 25 C.F.R. § 11.800 et seq.
Application and jurisdiction, see 25 C.F.R. § 11.100 et seq.
Civil actions, see 25 C.F.R. § 11.500 et seq.
Domestic relations, see 25 C.F.R. § 11.600 et seq.
Probate proceedings, see 25 C.F.R. § 11.700 et seq.
Tribal reassumption of jurisdiction over child custody proceedings, see 25 C.F.R. § 13.1 et seq.
CHAPTER 1
CIVIL PROCEDURE
Section
1. Title of Chapter
2. Jurisdiction-General
3. Law to be applied
4. Force of the Cherokee Common Law
5. Federal Rules of Civil Procedure-Federal Rules of Evidence
6. Legislative purpose
7. Right to bring suit
8 to 10. Reserved
11. Limitations of actions
12. Reserved
13. Parens patriae
14. Wrongful death
15. Joint tortfeasors
16. Class actions
17. Permissive joinder
18. Limitation of new action after reversal or failure otherwise than on merits
19. Interlocutory appeals
20. Appeal
Historical and Statutory Notes
2018 Legislation
LA 07-18, Section 2, provides:
‘‘Section 2. Purpose. The purpose of this
Act is to make technical amendments to Chapters
1, 2 and 3 of Title 12 of the Cherokee
Nation Code Annotated as found in Legislative
Act 16-16.’’
§ 1. Title of Chapter
This chapter shall be known as the Code of Civil Procedure of the Cherokee
Nation.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 2. Jurisdiction-General
The Courts of the Cherokee Nation may exercise jurisdiction on any basis
consistent with the Cherokee Nation Constitution.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
Cross References
Jurisdiction of District Court. see Const. Art. VIII, § 6; 20 CNCA § 24.
Jurisdiction of Supreme Court, see Const. Art. VIII, § 4; 20 CNCA § 51.
§ 3. Law to be applied
The courts shall apply the laws of the Cherokee Nation. The laws of the
Cherokee Nation shall include the Constitution of the Cherokee Nation, all
statutes heretofore and hereafter enacted by the Tribal Council and the Cherokee
common law. The Cherokee common law consists of the traditional
customs and usages of the Cherokee people since time immemorial. In matters
arising under the common law, the courts may request the advice of tribal
elders, scholars and counselors familiar with the same. No state or federal
law, including any state or federal regulations, shall be binding upon the courts
unless specifically incorporated into statute by the Tribal Council or adopted as
common law by a decision of the court. Notwithstanding, in matters which
cannot be resolved through the application of Cherokee law, the courts may
apply any federal or state law, including any regulation promulgated by the
United States Department of Interior, which would be cognizable in a court of
general jurisdiction therein.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 4. Force of the Cherokee Common Law
The Cherokee Common Law, as modified by the Constitution of the Cherokee
Nation, statutes, judicial decisions, and the condition and wants of the people,
shall remain in full force and effect within the Cherokee Nation in like force
with any statute of the Cherokee Nation insofar as the common law is not so
modified, but all Cherokee Nation laws shall be liberally construed to promote
their objective.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 5. Federal Rules of Civil Procedure-Federal Rules of Evidence
A. The Federal Rules of Civil Procedure shall be used in Cherokee Nation
courts in all suits of a civil nature, whether at law or in equity, unless
superseded by a Cherokee Nation Rule of Civil Procedure.
B. The Federal Rules of Evidence shall be used in Cherokee Nation courts
in all suits of a civil nature, whether at law or in equity, unless superseded by a
Cherokee Nation Rule of Evidence.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 6. Legislative purpose
This Act shall be construed so as to protect and ensure the political integrity,
the economic security, and the health and welfare of the tribe.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 7. Right to bring suit
A. Any citizen of the Cherokee Nation may bring a civil cause of action in
the Courts of the Cherokee Nation based on any federal statute or common law,
or the laws of any state where that citizen resides.
B. The Cherokee Nation Attorney General acting as parens patriae, may
bring a civil cause of action in the Courts of the Cherokee Nation based on any
federal statute or common law, or the laws of any state where any citizen of the
Cherokee Nation resides. To the extent there is any conflict between the laws
of the Cherokee Nation and federal law or the applicable state law, the laws of
the Cherokee Nation control.
C. The Cherokee Nation Attorney General acting as parens patriae, may
bring a civil cause of action in any district court of the United States or in any
court in any state of the United States having jurisdiction over the defendant, to
secure monetary or injunctive relief based on any applicable federal statute,
common law, or the laws of any state.
D. In any action brought under the laws of any state, the United States, or
any foreign nation, where at least 50 citizens of the Nation and/or Nation
Business entities would qualify as potential parties, the Cherokee Nation
Attorney General acting in parens patriae, has the right to represent the citizens
of the Nation in such action.
E. In any action under the laws of any state, the United States, or any
foreign nation, where at least 50 citizens of the Nation and/or Nation Business
Entities would qualify as plaintiffs, the Cherokee Nation Attorney General
acting as parens patriae, has the right to submit an aggregated claim or other
request for relief on behalf of all citizens of the Nation entitled to relief in such
action. This includes, but is not limited to, claims submitted in connection
with settlement or judgment in a class action, mass action, or mass tort claim.
The Cherokee Nation Attorney General shall collect all monies owed to the
citizens of the Nation in the aggregate and has the authority to distribute those
monies in accordance with the laws of the Cherokee Nation.
LA 07-18, eff. May 18, 2018.
§§ 8 to 10. Reserved
§ 11. Limitations of actions
A. Civil actions other than for the recovery of real property can only be
brought within the following periods after the cause of action shall have
accrued and not afterwards:
1. Within one (1) year: An action for libel, slander, malicious prosecution,
or false imprisonment; an action upon a statute for penalty or forfeiture,
except where the statute imposing it prescribes a different limitation;
2. Within three (3) years: An action upon a contract, express or implied,
not in writing; an action upon a liability created by statute other than a
forfeiture or penalty; and an action on a foreign judgment;
3. Within five (5) years: An action upon any contract, agreement, or
promise in writing;
4. 1
5. Within five (5) years: An action for trespass upon real property; an
action for taking, detaining, or injuring personal property, including actions
for the specific recovery of personal property; an action for injury to the
rights of another, not arising on contract, and not hereinafter specifically
enumerated; an action for relief on the ground of fraud-the cause of action
in such case shall not be deemed to have accrued until the discovery of the
fraud, an action for assault, battery, or injury to, or for the death of, an
individual caused by the wrongful act or negligence of another;
6. 1
7. Within five (5) years: An action upon the official bond or undertaking
of an executor, administrator, guardian, sheriff, or any other officer, or upon
the bond or undertaking given in attachment, injunction, arrest, or in any
case whatever required by the statute.
8. Within six (6) years: An action brought under the CNUDPA, with the
exception of a claim brought under Section 27 (The Antitrust Act) where the
statute of limitations is calculated from the date of the last commission of
such act or practice that is a violation of the CNUDPA.
9. Within ten (10) years: An action brought under Section 27 The Antitrust
Act, except if brought by the Cherokee Nation Attorney General as
parens patriae.
10. No statute of limitations shall apply to the Cherokee Nation as a party
plaintiff or to the Attorney General as a party plaintiff acting in parens patriae
on behalf of the Cherokee Nation, one or more tribal citizens of the Cherokee
Nation or one or more Cherokee Nation Business Entities.
B. Nothing herein expressly, or impliedly, waives the Cherokee Nation’s
sovereign immunity.
C. Statutes of limitations shall begin to run from the date when the plaintiff
knew, through the exercise of reasonable diligence, of all the elements of the
particular cause of action. Whether a plaintiff knew of a particular element is
a fact question to be determined by a jury.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
1 So in original.
§ 12. Reserved
§ 13. Parens patriae
A. The Cherokee Nation Attorney General may bring a civil action in the
name of the Cherokee Nation as parens patriae on behalf of tribal citizens of the
Cherokee Nation and/or on behalf of one or more Nation Business Entities to
secure monetary relief for injuries and damages sustained by such persons by
reason of any violation of law, both federal and that of states where any citizen
of the Cherokee Nation resides, including but not limited to, violations of the
Cherokee Nation Unfair & Deceptive Practices Act. Aggregate data and evidence
shall be deemed admissible if found by the court to be relevant. The
court shall exclude from the amount of monetary relief awarded in such action
any amount of monetary relief:
1. Which wholly duplicates amounts which have been awarded for the
same injury to tribal citizens of the Cherokee Nation; or
2. Which is properly allocable to natural persons who have excluded their
claims pursuant to subsection (C)(2) of this section.
B. The court shall award the Cherokee Nation as monetary relief threefold
the total actual damage sustained or ten thousand dollars ($10,000) per violation,
whichever is greater, plus the cost of suit, including a reasonable attorney’s
fee. The court may award under this section prejudgment interest on the
total award for the period beginning on the date of filing of Cherokee Nation’s
pleading setting forth a claim of parens patriae and ending on the date of
judgment at a rate equal to the average United States Treasury Bill rate of the
preceding calendar year. The court may award under this section postjudgment
interest on the total award for the period starting on the date of
judgment at the prime rate, as listed in the first edition of the Wall Street
Journal published for each calendar year, plus two percent (2%). In determining
whether an award of interest under this paragraph for any period is just in
the circumstances the court shall only consider:
1. Whether the Cherokee Nation or the opposing party, or either party’s
representative, made motions or asserted claims or defenses so lacking in
merit as to show that such party or representative acted intentionally for
delay or otherwise acted in bad faith;
2. Whether, the Cherokee Nation or the opposing party, or either party’s
representative, violated any applicable rule, statute, or court order providing
for sanctions for dilatory behavior or otherwise providing for expeditious
proceedings; and
3. Whether the Cherokee Nation or the opposing party, or either party’s
representative, engaged in conduct primarily for the purpose of delaying the
litigation or increasing the cost thereof.
C. Notice; exclusion election; final judgment
1. In any action brought under subsection (A) of this section the Attorney
General shall, at such times, in such manner, and with such content as the
court may direct, cause notice thereof to be given by publication. If the court
finds that notice given solely by publication would deny due process of law to
any person or persons, the court may direct further notice to such person or
persons according to the circumstances of the case;
2. Any person on whose behalf an action is brought under subsection (A)
of this section may elect to exclude from adjudication the portion of the
Cherokee Nation claim for monetary relief attributable to him by filing notice
of such election with the court within such time as specified in the notice
given pursuant to paragraph (1) of this subsection;
3. The final judgment in an action under subsection (A) of this section
shall be res judicata as to any claim under this title by any person on behalf of
whom such action was brought and who fails to give such notice within the
period specified in the notice given pursuant to paragraph (1) of this subsection.
D. Attorney’s fees in any action under subsection (A) of this section:
1. The amount of the plaintiffs’ attorney’s fees shall be determined by the
court; and
2. The court may, in its discretion, award a reasonable attorney’s fee to a
prevailing defendant upon a finding by clear and convincing evidence that
the Attorney General has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 14. Wrongful death
A. A claim for wrongful death may be brought against a person who, by his
negligence or by willful, wanton or reckless acts, causes the death of another
under such circumstances that the deceased could have recovered damages for
personal injuries if death had not resulted.
B. A person shall be liable for the negligence or the willful, wanton or
reckless act of his agents or servants to the same extent and subject to the same
limits as he would be liable under this section for his own act.
C. An action to recover damages under this section shall be commenced
within five (5) years from the date of death, or within five years from the date
when the deceased’s executor or next of kin knew, or in the exercise of
reasonable diligence, should have known of all the elements for a cause of
action.
D. The damages recoverable in actions for wrongful death as provided in
this section shall include the following:
1. Medical and burial expenses which shall be distributed to the person
who paid the expenses or to the decedent’s estate if paid by the estate;
2. The loss of consortium and the grief of the surviving spouse, which
shall be distributed to the surviving spouse;
3. The mental pain and anguish suffered by the decedent, which shall be
distributed to the surviving spouse and children, if any, or next of kin in the
same proportion as personal property of the decedent;
4. The pecuniary loss to the survivors based upon properly admissible
evidence with regard thereto including, but not limited to, the age, occupation,
earning capacity, health habits, and probable duration of the decedent’s
life, which must inure to the exclusive benefit of the surviving spouse and
children, if any, or next of kin, and shall be distributed to them according to
their pecuniary loss;
5. The grief and loss of companionship of the children and parents of the
decedent, which shall be distributed to them according to their grief and loss
of companionship;
6. The fair monetary value of the decedent to the persons entitled to
receive the damages recovered, including but not limited to, compensation
for the loss of the reasonably expected income, services, protection, care,
assistance, society, companionship, comfort, guidance, counsel, and advice of
the decedent to the persons entitled to the damages recovered;
7. Punitive or exemplary damages may also be recovered against the
person proximately causing the wrongful death or his representative if such
person be deceased, in such case as the decedent’s death was caused by the
malicious, willful, wanton, or reckless conduct of the defendant or by the
gross negligence of the defendant. Such damages, if recovered, shall be
distributed to the surviving spouse and children, if any, or next of kin in the
same proportion as personal property of the decedent.
E. Where the recovery is to be distributed according to a person’s pecuniary
loss or loss of companionship, the judge shall determine the proper division;
F. The above-mentioned distributions shall be made after the payment of
legal expenses and costs of the action.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 15. Joint tortfeasors
A. Joint tortfeasors are two or more persons who either:
1. Act in concert to commit a tort;
2. Act independently but cause a single indivisible tortious injury; or
3. Share responsibility for a tort because of vicarious liability.
B. Each joint tortfeasor shall be held jointly and severally liable for the
plaintiff’s total damages;
C. The doctrine of learned intermediary is specifically rejected;
D. The innovator of a device, drug, or other product may be held liable for
fraud or misrepresentation, by misstatement or omission, based on statements
it made in connection with the manufacture, safety, and efficacy of the original
device, drug or product by a plaintiff claiming injury caused by a generic
product manufactured by a different company.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 16. Class actions
A. All persons may join in one action as plaintiffs if:
1. They assert any right to relief jointly, severally, or in the alternative, in
respect of or arising out of the same transaction, occurrence, personal injury
or series of transactions or occurrences and if any question of law or fact
common to all these persons will arise in the action; or
2. They have a claim, right, or interest adverse to the defendant in the
property or controversy which is the subject of the action.
B. It is not necessary that each plaintiff be interested as to every cause of
action or as to all relief prayed for. Judgment may be given for one or more of
the plaintiffs according to their respective right to relief.
C. All persons may be joined in one action as defendants if there is asserted
against them:
1. Any right to relief jointly, severally, or in the alternative, in respect of
or arising out of the same transaction, occurrence, injury or series of
transactions or occurrences and if any question of law or fact common to all
these persons will arise in the action; or
2. A claim, right, or interest adverse to them in the property or controversy
which is the subject of the action.
D. It is not necessary that each defendant be interested as to every cause of
action or as to all relief prayed for. Judgment may be given against one or
more defendants according to their respective liabilities.
E. Where the plaintiff is in doubt as to the person from whom he or she is
entitled to redress, he or she may join two or more defendants, with the intent
that the question as to which, if any, of the defendants is liable, and to what
extent, may be determined between the parties.
F. When parties have been joined under Section (A) or (C), the court may
make such orders as may appear just to prevent any party from being embarrassed,
delayed, or put to undue expense, and may order separate trials or
make such other order as the interests of justice may require.
G. If the consent of anyone who should have been joined as plaintiff cannot
be obtained, he may be made a defendant, the reason thereof being stated in the
complaint; and when the question is one of a common or general interest, of
many persons, or when the parties are numerous, and it is impracticable to
bring them all before the court, one or more may sue or defend for the benefit
of all.
H. It is the intent of the Tribal Council in enacting this section to ensure
that the unpaid residuals in class action litigation are distributed, to the extent
possible, in a manner designed either to further the purposes of the underlying
causes of action, or to promote justice for all Cherokees. The Tribal Council
finds that the use of funds collected by the Court Fund pursuant to this section
for these purposes is in the public interest, is a proper use of the funds, and is
consistent with essential public and governmental purposes.
I. Prior to the entry of any judgment in a class action, the court shall
determine the total amount that will be payable to all class citizens, if all class
citizens are paid the pro rata amount to which they are entitled pursuant to the
judgment. The court shall also set a date when the parties shall report to the
court the total amount that was actually paid to the class citizens. After the
report is received, the court shall amend the judgment to direct the defendant
to pay the sum of the unpaid residue, plus interest on that sum at the legal rate
of interest from the date of entry of the initial judgment, to organizations or
foundations to support projects that will benefit the class or similarly situated
persons, or that promote the law consistent with the objectives and purposes of
the underlying cause of action, to child advocacy programs, or to organizations
providing services to the indigent.
J. No appeal shall be taken from the granting of the certification of a class.
K. Any waiver by a person of their right to pursue a class action is contrary
to public policy and shall be unenforceable and void.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 17. Permissive joinder
Any federally recognized Indian tribe or member of a federally recognized
tribe may join in any suit filed in Cherokee Nation District Court with permission
of the Attorney General of the Cherokee Nation. Said Joinder shall not
waive either expressly or impliedly the sovereign immunity of said tribe.
Jurisdiction over said tribe or person shall be limited to the case pending before
the Court.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 18. Limitation of new action after reversal or failure otherwise than on
merits
If any action is commenced within due time, and a judgment thereon for the
plaintiff is reversed, or if the plaintiff fails in such action otherwise than upon
the merits, the plaintiff, or, if he should die, and the cause of action survive, his
representatives may commence a new action within two (2) years after the
reversal or failure although the time limit for commencing the action shall have
expired before the new action is filed.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 19. Interlocutory appeals
The District Court shall not certify jurisdictional rulings for interlocutory
appeal.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 20. Appeal
Upon the filing of the Petition in Error of a civil money judgment, the District
Court may order the filing of a bond or other security in an amount sufficient to
satisfy the judgment including costs in the event the judgment is affirmed on
appeal. The Supreme Court may waive bond if the party demonstrates by
petition or affidavit that he/she is unable to post the bond. In lieu of any
supersedeas bond, the parties may stipulate with respect to any agreement or
undertaking. In lieu of any cost bond, the parties may stipulate with respect to
any agreement or undertaking conditioned that the monies or properties of the
Court are fully protected or prepaid. In the event of a reversal, the premium of
any bond will be taxed as a part of the costs. All such stipulations must be
approved by the Court and filed in the record.
Except as otherwise provided by law or by agreement of the parties, every
bond, undertaking, or stipulation must be secured by (1) the deposit of cash or
negotiable government bonds, undertaking, or stipulation; (2) the undertaking
or guaranty of a corporate surety doing business in the State of Oklahoma, and
holding a certificate of authority from such state; or (3) the undertaking or
guaranty of sufficient solvent sureties by a person or entity who owns real or
personal property within the State of Oklahoma worth double the amount of
the bond, undertaking, or stipulation over all debts and liabilities, and over all
obligations assumed on other bonds, undertakings, or stipulations, and exclusive
of all legal exemptions.
A. Stay with Bond on Appeal: If an appeal is taken from a monetary
judgment awarded in Cherokee Nation District Court, the appellant may
obtain a stay by supersedeas bond. The bond must be given upon filing the
notice of appeal or after obtaining the order allowing the appeal. The stay
takes effect when the court approves the bond.
B. Stay Without Bond on an Appeal by the Cherokee Nation, Its Officers,
or Its Agencies
1. The Court must not require a bond, obligation, or other security from
the appellant when granting a stay on an appeal by the Cherokee Nation,
its officers or its agencies or on an appeal directed by a department of the
Cherokee government.
2. When there is a stay of proceedings other than the enforcement of
the judgment, the trial court shall have jurisdiction of proceedings related
to the enforcement of the judgment as well as any other matter embraced
in the action and not affected by the judgment or order appealed from.
C. Supersedeas Bond
1. Unless an undertaking is given, the perfecting of an appeal shall not
stay enforcement of the judgment or order in the trial court if the judgment
or order is for any of the following:
a. Money or the payment of money, whether consisting of a special
fund or not, and whether payable by the appellant or another party to the
action;
b. Costs awarded which otherwise would not have been awarded as
costs.
2. The undertaking shall be on condition that if the judgment or order
or any part of it is affirmed or the appeal is withdrawn or dismissed, the
party ordered to pay shall pay the amount of the judgment or order, or the
part of it as to which the judgment or order is affirmed, as entered after the
receipt of the remittitur, together with any interest which may have
accrued pending the appeal and entry of the remittitur, and costs which
may be awarded against the appellant on appeal;
3. The undertaking shall be for double the amount of the judgment or
order. The liability on the undertaking may be enforced if the party
ordered to pay does not make the payment within ten (10) days after the
filing of the remittitur from the reviewing court;
4. If a surety on the undertaking pays the judgment, either with or
without action, after the judgment is affirmed, the surety is substituted to
the rights of the creditor and is entitled to control, enforce, and satisfy the
judgment, in all respects as if the surety had recovered the judgment;
5. Costs awarded by the trial court shall be added to the judgment for
purposes of determining the bond amount;
6. Attorney fees awarded shall be added to the judgment for purposes of
determining the bond amount.
D. A decision of the Supreme Court of the Cherokee Nation shall lift the
stay and the bond shall be released to the prevailing party immediately.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
CHAPTER 2
UNFAIR AND DECEPTIVE PRACTICES
Section
21. Title of Chapter
22. Purpose
23. General provisions
24. Construction and definitions
25. Deceptive practices
26. False advertising
27. Product Liability Actions
28. Unfair Competition Law
29. Remedies and procedures
Historical and Statutory Notes
2018 Legislation
LA 07-18, Section 2, provides:
‘‘Section 2. Purpose. The purpose of this
Act is to make technical amendments to Chapters
1, 2 and 3 of Title 12 of the Cherokee
Nation Code Annotated as found in Legislative
Act 16-16.’’
§ 21. Title of Chapter
This chapter shall be known as the Cherokee Nation Unfair & Deceptive
Practices Act (‘‘CNUDPA’’ or ‘‘Act’’).
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 22. Purpose
The purpose of this Act is to enhance the protections against unfair, deceptive
and illegal marketing, advertising and unfair competition relating to transactions
of goods and services.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 23. General provisions
A. The provisions of this Act must be construed as cumulative to existing
law and not as new enactments;
B. Any waiver by a person of the provisions of this Act including, but not
limited to, arbitration provisions that waive a person’s right to seek redress
through the courts or proceed as a class action, is contrary to public policy and
shall be unenforceable and void;
C. The provisions of this Act are not exclusive. The remedies provided
herein for violation of any section of this Act or for conduct proscribed by any
section of this Act shall accrue in addition to any other procedures or remedies
for any violation or conduct provided for in any other law. Nothing in this Act
shall limit any other statutory, customary or common law rights. Nothing in
this Act shall limit the right of the Attorney General or any other person to
bring class actions or other lawsuits. If any act or practice proscribed under
this title also constitutes a cause of action in common law, customary law, or
pursuant to another statute, the person or Attorney General may also assert
such common law or statutory causes of action under the procedures and with
the remedies provided for in such law.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 24. Construction and definitions
A. This Act shall be liberally construed and applied to promote its underlying
purposes, which are to protect the Cherokee Nation and persons against
unfair and deceptive acts and practices, both directly and indirectly, and to
provide efficient and economical procedures to secure such protection.
B. As used in this Act:
1. ‘‘Goods’’ means any tangible chattels bought or leased for use primarily
for any purpose, including personal, family, medical or household purposes,
including certificates or coupons exchangeable for these goods, and including
goods that, at the time of the sale, directly or indirectly or subsequently, are
to be so affixed to real property as to become a part of real property, whether
or not they are severable from the real property;
2. ‘‘Services’’ means any work, labor, and services for a commercial or
business use, including services furnished in connection with the sale or
repair of goods;
3. ‘‘Person’’ means an individual, group of individuals, partnership, corporation,
business entity, limited liability company, the Cherokee Nation,
association, or other group, however organized, who seeks or acquires, by
purchase or lease, any goods or services for any purpose;
4. ‘‘Nation Business Entity’’ means any partnership or corporate entity
that is owned or controlled by the Cherokee Nation
5. ‘‘Consumer’’ means any individual or group of individuals, who is a
buyer of goods or services for personal use;
6. ‘‘Transaction’’ means any delivery and acceptance of goods and services.
Transactions include, but are not limited to, the sale of goods,
services, drugs and medical devices to the Cherokee Nation for the use and
benefit of tribal recipients, regardless of whether the manufacturer sold
directly to the consumer or used a third party;
7. ‘‘Senior Citizen’’ means a person who is 65 years of age or older;
8. ‘‘Disabled Person’’ means any person who has a physical or mental
impairment that substantially limits one or more major life activities;
9. ‘‘Physical or mental impairment’’ means any of the following:
a. Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss substantially affecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive; genitourinary;
hemic and lymphatic; skin; or endocrine;
b. Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities. ‘‘Physical or mental impairment’’ includes, but is not limited
to, such diseases and conditions as orthopedic, visual, speech, and hearing
impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclero-
sis, cancer, heart disease, diabetes, mental retardation, and emotional
illness.
10. ‘‘Major life activities’’ mean functions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working;
11. ‘‘Sell’’ includes selling, offering for sale or advertising for sale, whether
directly or indirectly;
12. ‘‘Give’’ includes giving, offering to give or advertising the intent to
give, directly and/or indirectly;
13. ‘‘Article or product’’ includes any article, product, commodity, thing
of value, service or output of a service trade;
14. ‘‘Vendor’’ includes any person who performs work upon, renovates,
alters or improves any personal property belonging to another person;
15. ‘‘Cost’’ as applied to production includes the cost of raw materials,
labor, and all overhead expenses of the producer. Cost as applied to
distribution means the invoice or replacement cost, whichever is lower, of the
article or product to the distributor and vendor, plus the cost of doing
business by the distributor and vendor and in the absence of proof of cost of
doing business a markup of six (6) percent on such invoice or replacement
cost shall be prima facie proof of such cost of doing business. Cost as applied
to warranty service agreements includes the cost of parts, transporting the
parts, labor, and all overhead expenses of the service agency. Discounts
granted for cash payments shall not be used to reduce costs;
16. ‘‘Supplier’’ is any person engaged in the business of making a consumer
product directly or indirectly available to consumers.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 25. Deceptive practices
A. Deceptive acts or practices in the conduct of any trade or commerce are
hereby declared unlawful.
B. It shall be a violation of this act, whether or not any person is in fact
misled, deceived or damaged thereby, for any person to engage in, inter alia,
the following deceptive acts or practices:
1. Passing off goods or services as those of another;
2. Misrepresenting the source, sponsorship, approval, or certification of
goods or services;
3. Misrepresenting the affiliation, connection, or association with, or
certification by another;
4. Using deceptive representations or designations of geographic origin in
connection with goods or services;
5. Representing that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities which they do not have or
that a person has a sponsorship, approval, status, affiliation, or connection
which he or she does not have;
6. Representing that goods are original or new if they have deteriorated
unreasonably or are altered, reconditioned, reclaimed, used, or secondhand;
7. Representing that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model if they are of
another;
8. Disparaging the goods, services, or business of another by false or
misleading representation of fact;
9. Using innuendo or ambiguity as to a material fact, which has a
tendency to mislead;
10. Advertising goods or services with intent not to sell them as advertised;
11. Advertising goods or services with intent not to supply reasonably
expectable demand, unless the advertisement discloses a limitation of quantity;
12. Advertising furniture without clearly indicating that it is unassembled
if that is the case;
13. Advertising the price of unassembled furniture without clearly indicating
the assembled price of that furniture if the same furniture is available
assembled from the seller;
14. Making false or misleading statements of fact concerning reasons for,
existence of, or amounts of price reductions;
15. Employs ‘‘bait and switch’’ advertising, which consists of an offer to
sell the subject of a consumer transaction which the seller does not intend to
sell, which advertising is accompanied by one or more of the following
practices:
a. Refusal to show the subject of a consumer transaction advertised;
b. Disparagement of the advertised subject of a consumer transaction
or the terms of sale;
c. Requiring undisclosed tie-in sales or other undisclosed conditions to
be met prior to selling the advertised subject of a consumer transaction;
d. Refusal to take orders for the subject of a consumer transaction
advertised for delivery within a reasonable time;
e. Showing or demonstrating defective subject of a consumer transaction
which the seller knows is unusable or impracticable for the purpose
set forth in the advertisement;
f. Accepting a deposit for the subject of a consumer transaction and
subsequently charging the buyer for a higher priced item; or
g. Willful failure to make deliveries of the subject of a consumer
transaction within a reasonable time or to make a refund therefor upon the
request of the purchaser;
16. Misrepresenting the safety or efficacy of any product good, or service
that is the subject of a consumer transaction, including but not limited to,
food, medical devices, pharmaceuticals, motor vehicles, etc.;
17. Representing that a transaction confers or involves rights, remedies,
or obligations which it does not have or involve, or which are prohibited by
law;
18. Representing that a part, replacement, or repair service is needed
when it is not;
19. Representing that the subject of a transaction has been supplied in
accordance with a previous representation when it has not;
20. Representing that the consumer will receive a rebate, discount, or
other economic benefit, if the earning of the benefit is contingent on an event
to occur subsequent to the consummation of the transaction;
21. Misrepresenting the authority of a salesperson, representative, or
agent to negotiate the final terms of a transaction with a consumer;
22. Inserting an unconscionable provision in a contract;
23. Advertising that a product is being offered at a specific price plus a
specific percentage of that price unless (a) the total price is set forth in the
advertisement, which may include, but is not limited to, shelf tags, displays,
and media advertising, in a size larger than any other price in that advertisement,
and (b) the specific price plus a specific percentage of that price
represents a markup from the seller’s costs or from the wholesale price of the
product;
24. The home solicitation of a consumer who is a senior citizen where a
loan is made encumbering the primary residence of that consumer for the
purposes of paying for home improvements and where the transaction is part
of a pattern or practice in violation of this Act;
25. Charging or receiving an unreasonable fee to prepare, aid, or advise
any prospective applicant, applicant, or recipient in the procurement, maintenance,
or securing of Cherokee Nation or other public social services. For
purposes of this paragraph, the following definitions shall apply:
a. ‘‘Social services’’ means those activities and functions of government
involved in providing aid or services, or both, including health care
services and medical assistance, to those persons who are in need of that
aid or those services and may benefit from them;
b. ‘‘Unreasonable fee’’ means a fee that is exorbitant and disproportionate
to the services performed. Factors to be considered, when
appropriate, in determining the reasonableness of a fee, are based on the
circumstances existing at the time of the service and shall include, but
not be limited to, all of the following:
(i) The time and effort required;
(ii) The novelty and difficulty of the services;
(iii) The skill required to perform the services;
(iv) The nature and length of the professional relationship;
(v) The experience, reputation, and ability of the person providing the
services;
(vi) Paragraph (22) shall not apply to attorneys licensed to practice
law, who are subject to Rules of Professional Conduct.
26. Charging or receiving an unreasonable interest rate in connection
with the purchase or sale of any good or provision or receipt of any service.
a. ‘‘Unreasonable interest rate’’ means an interest rate that is exorbitant
and disproportionate to the total cost or value of the goods or services
being purchased or sold. Factors to be considered, when appropriate, in
determining the reasonableness of the interest rate are based on the
circumstances existing at the time of the sale of the good or service and
shall include, but not be limited to, all of the following:
i. The interest rate charged for comparable competitive goods or
services;
ii. The interest rate charged for the same good or service sold or
provided to another under similar circumstances and costs;
iii. The novelty or uniqueness of the good or service;
iv. The skill required to create the good or perform the service.
27. Charging an unreasonable price or receiving an unreasonable payment
for a good or service.
a. ‘‘Unreasonable price’’ or ‘‘unreasonable payment’’ means a price or
payment that is exorbitant and disproportionate to the value of the good
provided or the services performed. Factors to be considered, when
appropriate, in determining the reasonableness of a price or payment are
based on the circumstances existing at the time of the sale of the good or
service and shall include, but not be limited to, all of the following:
i. The price or payment for comparable competitive goods or services;
ii. The price or payment of the same good or service sold or provided
to another under similar circumstances and costs;
iii. The novelty or uniqueness of the good or service;
iv. The skill required to create the good or perform the services;
v. Paragraph (23) shall not apply to attorneys licensed to practice
law, who are subject to Rules of Professional Conduct.
28. Failing to adequately warn or instruct of the potential risks, side
effects, or allergic reactions that the manufacturer or distributor knew or
reasonably should have known about;
29. Making any decision relating to the purchase or sale of goods, or
provision of services, or determination of the cost, fee, value, or interest rate
to be charged to an individual based on their geographical location, race,
gender, ethnicity, or tribal affiliation;
30. Violation of any law affecting or impacting on consumer goods,
supplies, and services enacted by the United States;
31. Any other act or practice determined by the court to be deceptive with
regard to the sale of any goods and/or services to consumers.
C. Remedies
1. Each violation of any of the provisions of this Act is punishable by a
fine of ten thousand dollars ($10,000) for each violation or each individual
transaction that constitutes a violation in addition to any other remedy
provided by law and equity;except in the instances in which a Senior Citizen
or a Disabled Person is the victim of such violation in which case the fine
shall be twenty-five thousand dollars ($25,000).
2. In any action under this act in which judgment is entered against the
defendant the plaintiff shall be awarded reasonable attorney fees together
with the costs of suit;
3. The remedies or penalties provided by this act are cumulative to each
other and to the remedies or penalties available under all other laws of the
Cherokee Nation.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 26. False advertising
A. It is unlawful for any individual, entity, association, or any employee or
agent thereof with intent directly or indirectly to sell products, to dispose of
real or personal property or to perform services, professional or otherwise, or
anything of any nature whatsoever or to induce the public to enter into any
obligation relating thereto, to make or disseminate or cause to be made or
disseminated before in the Cherokee Nation, or to make or disseminate or
cause to be made or disseminated from the Cherokee Nation, in any newspaper
or other publication, or any advertising device, or by public outcry or proclamation,
or in any other manner or means whatsoever, including over the
internet, any statement, concerning that product, real or personal property or
those services, professional or otherwise, or concerning any circumstance or
matter of fact connected with the proposed performance or disposition thereof,
which is untrue or misleading, which fails to adequately warn, or which is
known, or which by the exercise of reasonable care should be known, to be
untrue or misleading, or for any person, firm, or corporation to so make or
disseminate or cause to be so made or disseminated any such statement as part
of a plan or scheme with the intent not to sell that personal property or those
services, professional or otherwise, so advertised at the price stated therein, or
as so advertised;
B. It is unlawful for any person to solicit a sale or order for sale of goods or
services at the residence of a prospective buyer, in person or by means of
telephone, without clearly, affirmatively and expressly revealing at the time the
person initially contacts the prospective buyer, and before making any other
statement, except a greeting, or asking the prospective buyer any other questions,
that the purpose of the contact is to effect a sale, by doing all of the
following:
1. Stating the identity of the person making the solicitation;
2. Stating the trade name of the person represented by the person making
the solicitation;
3. Stating the kind of goods or services being offered for sale;
4. And, in the case of an ‘‘in person’’ contact, the person making the
solicitation shall, in addition to meeting the requirements of paragraphs (1),
(2) and (3), show or display identification which states the information
required by paragraphs (1) and (2) as well as the address of the place of
business of one of such persons so identified.
C. It is unlawful for any person, in soliciting a sale or order for the sale of
goods or services at the residence of a prospective buyer, in person or by
telephone, to use any plan, scheme, or ruse which misrepresents his true status
or mission for the purpose of making such sale or order for the sale of goods or
services;
D. In addition to any other penalties or remedies applicable to violations of
this section, the intentional violation of this section shall entitle persons bound
to a contract, when there was a sales approach or presentation or both in
which such intentional violation of this act took place, to damages of three
times the amount of the sale;
E. Each violation of any of the provisions of this section is punishable by a
fine not exceeding ten thousand dollars ($10,000) in addition to any other
remedy provided by law; except in the instances in which a Senior Citizen or a
Disabled Person is the victim of such violation in which case the fine shall be
twenty-five thousand dollars ($25,000);
F. In any action under this section in which judgment is entered against the
defendant the plaintiff shall be awarded a reasonable attorney’s fee together
with the costs of suit;
G. The remedies or penalties provided by this Act are cumulative to each
other and to the remedies or penalties available under all other laws of
Cherokee Nation.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
§ 27. Product Liability Actions
A. A manufacturer or seller shall be liable for any loss caused by the
manufacturer’s or seller’s negligence, intentional misconduct, recklessness, or
other act or omission, such as negligently modifying or altering a product.
B. For purposes of this section, ‘‘loss’’ includes actual damages, punitive
damages, consequential damages, court costs and other reasonable expenses,
reasonable attorneys’ fees, and reasonably foreseeable harm.
C. Damages awarded by the trier of fact shall, on final judgment, be deemed
reasonable for purposes of this section.
D. For purposes of this section, a wholesale distributor or retail seller who
completely or partially assembles a product in accordance with the manufacturer’s
instructions shall be considered a seller.
LA 08-18, eff. May 18, 2018.
Historical and Statutory Notes
2018 Legislation
LA 08-18, Section 2, provides:
‘‘Section 2. Purpose. The purpose of this
Act is to modernize the laws and the Cherokee
Nation and to protect elders, disabled and all
other Cherokee citizens from unfair and deceptive
business practices, unsafe products and unfair
competition.’’
§ 28. Unfair Competition Law
A. As used in this section The Cherokee Nation Antitrust Act shall be
referred to as the ‘‘Antitrust Act,’’
B. Definitions
As used in the Antitrust Act:
(1) ‘‘Attorney General’’ means the Attorney General of the Cherokee Nation,
any attorney employed by the Office of the Attorney General designated
by the Attorney General to act on his behalf and/or any other person
retained or employed by the Attorney General as a duly authorized representative.
(2) ‘‘District Court’’ means the District Court for the Cherokee Nation.
(3) ‘‘Nation’’ means The Cherokee Nation.
(4) ‘‘Person’’ includes corporations, partnerships, and associations existing
under or authorized by any state or territory of the United States, or any
foreign state or nation.
(5) ‘‘Public office’’ means any organized body, office, agency, institution,
or entity established by the laws or regulations of the Nation for the
exercise of any function of government.
(6) ‘‘Trust’’ is a combination of capital, skill, or acts by two or more
persons for any of the following purposes:
(a) To create or carry out any restrictions on trade or commerce;
(b) To limit or reduce the production of, or increase or reduce the price
of, a product or service;
(c) To prevent competition in design, manufacturing, making, transportation,
sale, purchase or providing of a product or service;
(d) To raise, fix, maintain, or stabilize the price at which a product or
service is sold, offered for, or intended for sale, barter, use, or consumption
to the Cherokee Nation, or to any citizen of or entity owned by the
Cherokee Nation, or to persons within the territories of the Cherokee
Nation;
(e) To make, enter into, execute, or carry out contracts, obligations, or
agreements, oral or written, of any kind by which they bind or have
bound themselves not to sell, dispose of, or transport an article or
commodity, or an article of trade, use, merchandise, commerce, consumption
or a service below a common standard figure or fixed value, or
by which they agree in any manner to keep the price of such article,
commodity, or service at a fixed or graduated figure, or by which they
shall in any manner establish or settle the price of an article, commodity,
or service between them or themselves and others, so as directly or
indirectly to preclude a free and unrestricted competition among themselves,
purchasers, or consumers in the sale of such article, commodity
or service, or by which they agree to pool, combine, or directly or
indirectly unite any interests which they have connected with the sale or
of such article, commodity or service, that its price might in any manner
be affected;
(f) To refuse to buy from, sell to, or trade with any person because such
person appears on a blacklist issued by, or is being boycotted by, any
other person or persons.
(g) To restrain or prevent competition in the letting or awarding of any
public contract in derogation of any statute, ordinance, or rule requiring
the use of competitive bidding or selection in the letting or awarding of a
public contract.
(h) A trust as defined in this division is unlawful and void.
C. Prohibition of Agreements in Restraint of Trade.
No person shall enter into a combination, contract, or agreement, the
purpose, effect or intent of which is to limit or fix the price or lessen the
production or sale of an article or service in commerce, use, or consumption;
to prevent, restrict, or diminish the manufacture or output of such article or
service; or refuse to buy from, sell to, or trade with any person to exclude such
person, product or service from competing in commerce.
D. Conspiracy Against Trade Prohibited.
Every combination, contract, or agreement in the form of a trust is declared
to be a conspiracy against trade and is illegal. No person shall engage in such
conspiracy or take part therein, or aid or advise in its commission, or, as
principal, manager, director, agent, servant, or employer, or in any other
capacity, knowingly carry out any of the stipulations, purposes, prices, or rates,
or furnish any information to assist in carrying out such purposes, or orders
thereunder, or in pursuance thereof, or in any manner violate the Antitrust Act.
Each individual violation of this section is a separate offense.
E. Illegal Contracts.
Any contract or agreement in violation of the Antitrust Act is void ab initio.
F. Jurisdiction
The District Court is vested with jurisdiction and is the appropriate venue for
the adjudication of any investigations, proceedings or claims brought for any
violations of the Antitrust Act.
Any proceedings to restrain, enjoin or to seek damages for violations of the
Antitrust Act, shall be instituted by the filing of a complaint setting forth the
case and praying for all such remedies requested. Any complaint and all
subsequent proceedings thereafter shall comply with the Federal Rules of Civil
Procedure and the Local Rules of the District Court.
Upon the filing of a complaint, and before final decree, the District Court
may issue such temporary restraining order or prohibition as is just in the
premises, including, but not limited to, restraining or enjoining the corporation
and its officers and agents from continuing or committing, during the pendency
of the action, the alleged actions upon which the complaint was brought.
G. Right to Civil Cause of Action
The Nation or any citizen of the Nation or any entity owned, in whole or in
part, or controlled by the Nation who may be damaged or injured by any
agreement, monopoly, trust, conspiracy, or combination in restraint of trade
which is declared unlawful by this Antitrust Act shall have a cause of action as
a Plaintiff against any person causing such damage or injury regardless of
whether the Nation or such citizen or entity dealt directly or indirectly with the
defendant, and without regard to the amount in controversy. Such action may
be brought by the Attorney General on behalf of the Nation in its sovereign
capacity as parens patriae, on behalf of any citizen or citizens of the Nation
and/or on behalf of any corporation or other entity which is owned, in whole or
in part, or controlled by the Nation.
H. Parties Defendant-Multiple Proceedings
In any action or proceeding in the District Court, all persons that are party to
or participating in the trust or conspiracy against trade violative of the Antitrust
Act may be made parties defendant, and shall be jointly and severally liable for
any and all damages and attorney’s fees and costs of Plaintiff. Actions or
proceedings for damages and for an injunction may be instituted simultaneously,
or while one or another of them is pending, such actions or proceedings
being instituted in the District Court. No action or proceeding for an injunc-
tion is a bar to an action or proceeding for damages, nor is an action or
proceeding for damages a bar to one instituted to restrain and enjoin.
I. Statute of Limitations
Any action or proceeding for a violation of the Antitrust Act shall be forever
barred unless commenced within ten (10) years after the cause of action
accrued, except for any such action brought by the Cherokee Nation Attorney
General as parens patriae. For purposes of this Section, the cause of action
shall have ‘‘accrued’’ on the date upon which the Plaintiff discovered sufficient
facts to be able to determine that it was harmed by the specific violation or
violations of the Act alleged in the complaint.
J. Evidence.
In any case brought for violation of the Antitrust Act it is sufficient to prove
that a trust, combination or conspiracy exists, and that the defendant belonged
to it, or acted for or in connection with it, without proving all the members
belonging to it or proving or producing an article of agreement or a written
instrument on which it may have been based; or that it was evidenced by a
written instrument.
K. Remedies
In addition to the remedies described elsewhere in this Chapter, the Plaintiff
in any action commenced hereunder in the District Court who is threatened
with injury or additional injury by reason of any person’s violation of such acts
may commence an action in such district court to enjoin any such violation,
and any damages suffered may be sued for and recovered in the same action in
addition to injunctive relief.
L. Recovery of Fees and Costs
In any action commenced under this section, upon judgment entered by the
District Court in its favor, the Plaintiff will be entitled to the recovery of
reasonable attorney’s fees and costs. Costs for purposes of this section shall
include all of the costs incurred by Plaintiff for investigation and proceedings
related to any violation of this Antitrust Act, including but not limited to, the ediscovery
costs for processing and hosting electronically produced and stored
information obtained through subpoena and/or discovery whatever the source.
M. Damages
The Plaintiff in any action commenced hereunder, may sue for and recover
damages for the entire time period in which damages were suffered as a result
of any violation of this Antitrust Act, at Plaintiff’s election, either:
(1) treble the damages sustained, or
(2) damages in the amount equal to ten thousand dollars ($10,000) for
each transaction affected by any actions forbidden or declared unlawful by
this Antitrust Act, or
(3) the full sales price for all products or services affected by any actions
forbidden or declared unlawful by this Antitrust Act.
These damages remedies are in addition to any other remedies provided by law
or in equity, and these remedies shall not diminish or offset any other remedy.
N. INJUNCTIVE RELIEF
A. The court may, in its discretion, include in any judgment for relief an
injunction against a violation of this chapter or such other restraint as it may
deem expedient in order to deter the defendant from, and insure against, his
committing a future violation of this Act;
B. Any injunction against a violation of this Act, whether interim or final,
shall cover every article or product and not merely the particular article or
product involved in the action;
C. It is not necessary for the plaintiff, in any action under this chapter, to
provide or file any undertaking or bond for the issuance of any interim or
final injunction;
LA 16-16, eff. April 21, 2016. Amended LA 08-18, eff. May 18, 2018. Renumbered
from 12 CNCA § 27.
Historical and Statutory Notes
2018 Legislation
LA 08-18, Section 2, provides:
‘‘Section 2. Purpose. The purpose of this
Act is to modernize the laws and the Cherokee
Nation and to protect elders, disabled and all
other Cherokee citizens from unfair and deceptive
business practices, unsafe products and unfair
competition.’’
§ 29. Remedies and procedures
In addition to the specific remedies above, the below remedies shall also
govern:
A. Any person who engages, has engaged, or proposes to engage in
violations of this Act shall be liable for each violation, which shall be assessed
and recovered in a civil action. The number of violations shall be computed
based upon each item sold, each marketing material distributed and each
prescription filled in violation of this Act. A single act may result in multiple
violations of the CNUDPA. Penalties shall be cumulative for violations of
each section of the CNUDPA;
B. The Cherokee Nation may bring an action for any violation of this Act
on behalf of itself and tribal citizens for the recovery of damages, civil
penalties, injunction and all other remedies available by law or in equity.
C. Whenever the Attorney General has reason to believe that any person is
using or is about to use any act or practice declared to be unlawful, he may
bring an action in the name of the Cherokee Nation against such person to
restrain by temporary restraining order or preliminary or permanent injunction
the use of such method, act or practice. The court may issue temporary
restraining orders or preliminary or permanent injunctions and make such
other orders or judgments as may be necessary to restore to the Cherokee
Nation or any person who has suffered any loss by reason of the use or
employment of such unlawful method, act or practice.
D. If the court finds any act or practice unlawful with regard to any
security or any contract of sale of a commodity for future delivery, the court
may issue such orders or judgments as may be necessary to restore any
person who has suffered any loss up to three but not less than two times that
amount if the court finds that the use of the act or practice was a reckless
violation, a civil penalty to be paid to the Cherokee Nation of ten thousand
dollars ($10,000) for each such violation, and also may require said person to
pay the reasonable costs of investigation and litigation of such violation,
including reasonable attorney fees;
E 1.
F. The court shall impose a civil penalty for each violation of this Act. In
assessing the amount of the civil penalty, the court shall consider any one or
more of the relevant circumstances presented by any of the parties to the
case, including, but not limited to, the following: the nature and seriousness
of the misconduct, the number of violations, the persistence of the misconduct,
the length of time over which the misconduct occurred, the willfulness
of the defendant’s misconduct, and the defendant’s assets, liabilities, and net
worth;
G. In determining whether to impose a civil penalty and the amount
thereof, the court shall consider, in addition to any other appropriate factors,
the extent to which one or more of the following factors are present:
1. Whether the defendant knew or should have known that his or her
conduct was directed to one or more Senior Citizens or Disabled Persons;
2. Whether the defendant’s conduct caused one or more Senior Citizens
or Disabled Persons to suffer: physical impairment or injury, loss or
encumbrance of a primary residence, principal employment, or source of
income; substantial loss of property set aside for retirement, or for personal
or family care and maintenance; or substantial loss of payments received
under a pension or retirement plan or a government benefits
program, or assets essential to the health or welfare of the Senior Citizen
or Disabled Person;
3. Whether one or more Senior Citizens or Disabled Persons are substantially
more vulnerable than other members of the public to the defendant’s
conduct because of age, poor health or infirmity, impaired understanding,
restricted mobility, or disability, and actually suffered substantial
physical, emotional, or economic damage resulting from the defendant’s
conduct.
H. Any court of competent jurisdiction hearing an action pursuant to this
Act may make orders and judgments as may be necessary to restore to any
person, Senior Citizen or Disabled Person any money or property, real or
personal, which may have been acquired by means of a violation of this
chapter. Restitution ordered pursuant to this subdivision shall be given
priority over recovery of any civil penalty designated by the court. If the
court determines that full restitution cannot be made to those disabled
persons, either at the time of judgment or by a future date determined by the
court, then restitution under this subdivision shall be made on a pro rata
basis depending on the amount of loss;
I. Any person who intentionally violates any injunction shall be liable for
a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each
violation. Where the conduct constituting a violation is of a continuing
nature, each day of that conduct is a separate and distinct violation. In
determining the amount of the civil penalty, the court shall consider all
relevant circumstances, including, but not limited to, the extent of the harm
caused by the conduct constituting a violation, the nature and persistence of
that conduct, the length of time over which the conduct occurred, the assets,
liabilities, and net worth of the person, whether corporate or individual, and
any corrective action taken by the defendant. For the purposes of this
section, the court issuing such an injunction or order shall retain jurisdiction,
and the cause shall be continued, and in such case the Attorney General
acting in the name of the Cherokee Nation may immediately petition for
recovery of such civil penalty;
J. Any person entitled to bring an action may bring an action against that
person who used or employed any method, act, or practice declared to be
unlawful, to recover or obtain any or all of the following, as appropriate and
ordered by the Court:
1. Three times actual damages, or $10,000, whichever is higher;
2. An order enjoining the methods, acts, or practices;
3. Restitution of property;
4. Civil penalty;
5. Punitive damages;
6. Equitable relief; and
7. Any other relief that the Court deems proper.
K. Any consumer who is a Senior Citizen or a Disabled Person may seek
and be awarded, in addition to the remedies specified therein, up to twentyfive
thousand dollars ($25,000) where the trier of fact finds all of the
following:
1. That the consumer has suffered physical, emotional, or economic
damage resulting from the defendant’s conduct; and
2. That an additional award is appropriate.
L. In any action under this Act, it is not necessary to allege or prove
actual damages or the threat thereof, or actual injury or the threat thereof, to
the plaintiff. But, in no case shall the total award of damages in a class
action be less than ten thousand dollars ($10,000) for each violation;
M. Aggregate data and evidence shall be admissible if found by the court
to be relevant.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018. Renumbered
from 12 CNCA § 28.
1 So in original.
CHAPTER 3
INTEREST ON JUDGMENTS
Section
30. Interest on judgments
Historical and Statutory Notes
2018 Legislation
LA 07-18, Section 2, provides:
‘‘Section 2. Purpose. The purpose of this
Act is to make technical amendments to Chapters
1, 2 and 3 of Title 12 of the Cherokee
Nation Code Annotated as found in Legislative
Act 16-16.’’
§ 30. Interest on judgments
The Court may award interest on the total damages for the period beginning
on the date of filing of a pleading setting forth a claim at a rate equal to the
average United States Treasury Bill rate of the preceding calendar year. In
determining whether an award of interest under this paragraph for any period
is just in the circumstances, the court shall only consider:
A. Whether plaintiff or the opposing party, or either party’s representative,
made motions or asserted claims or defenses so lacking in merit as to
show that such party or representative acted intentionally for delay or
otherwise acted in bad faith;
B. Whether, in the course of the action involved, plaintiff or the opposing
party, or either party’s representative, violated any applicable rule, statute, or
court order providing for sanctions for dilatory behavior or otherwise providing
for expeditious proceedings; and
C. Whether plaintiff or the opposing party, or either party’s representative,
engaged in conduct primarily for the purpose of delaying the litigation
or increasing the cost thereof.
LA 16-16, eff. April 21, 2016. Amended LA 07-18, eff. May 18, 2018.
Oklahoma Statutes
Interest on judgments, see 12 O.S. §§ 727, 727.1.
CHAPTER 5
CIVIL PROTECTIVE ORDERS
Section
503. Jurisdiction for civil protective orders
§ 503. Jurisdiction for civil protective orders
Legislative History: Exclusive jurisdiction over
civil protective order proceedings at subsection
(A) is based upon exercise of exclusive tribal
jurisdiction over crimes and civil matters on
Indian lands which are not embodied in the
Assimilative Major Crimes Act. Exclusive jurisdiction
may alternatively be based upon case
law based upon the individual facts in the case.
Concurrent jurisdiction provisions at subsection
(B) state the alternative grounds for jurisdiction:
subject matter jurisdiction over a Cherokee respondent
or Indian Country; subject matter jurisdiction
over Cherokee lands where the exercise
of police power is desirable for the health
and safety of Cherokee citizens and the orderly
administration of justice; enforcement of foreign
protective orders; and interstitial jurisdiction
pending the determination of the proper forum
or forums. Subsection (C) mandates the Court
to exercise jurisdiction where it can be liberally
interpreted, under the sovereign power of Cherokee
Nation to protect its citizens and the noncitizens
within Cherokee Nation, against harm.
Subsection (D) describes the Court’s authorization
to utilize jurisdictional theory to respond
appropriately in light of many complex factual
considerations which have been addressed by
evolving case law, for example.
LA 33-05, eff. November 12, 2005. Amended LA 13-18, eff. June 15, 2018.
Historical and Statutory Notes
2018 Legislation
LA 13-18, Section 2, provides:
‘‘Section 2. Purpose. Congress has clarified
with the reauthorization of the Violence
Against Women Act (VAWA) of 2013, that tribal
courts have full jurisdiction over all parties to a
protective order if the protection order arose in
Indian Country or if the order was issued within
the authority of the Indian tribe per 18 U.S.C.
2265(e). This act expands the civil jurisdiction
over civil protective orders to include non-Indians
who have protective orders issued against
them by an citizen of a federally recognized
tribe.’’
CHAPTER 9
CHEROKEE NATION JUDGMENT FUND ACT
Section
1401. Short title
1402. Purpose
1403. Definitions
1404. Act governs
1405. Indemnification not waived-Gaming compact not affected
1406. Fund established
1407. Appropriations authorized
1408. Certification of judgments
1409. Claims allowed
1410. Dormancy period
§ 1401. Short title
This Act shall be known and may be cited as the Cherokee Nation Judgment
Fund Act.
LA 08-16, eff. May 11, 2016.
§ 1402. Purpose
The purpose of this Act is to create a fund from which judgment claims
against the Cherokee Nation shall be paid in a fair and efficient manner and
bar payment of the same by any department, agency or subdivision of the
Cherokee Nation.
LA 08-16, eff. May 11, 2016.
§ 1403. Definitions
As used in this Act, the following words have the following meanings:
1. ‘‘Attorney General’’ means the Attorney General of the Cherokee Nation,
or his designee.
2. ‘‘Certified Judgment’’ means any judgment which has been certified by
the Attorney General.
3. ‘‘Claim’’ means a right to payment under a certified judgment.
4. ‘‘Claimant’’ means the holder of valid, certified judgment.
5. ‘‘Department’’ means any department, agency or subdivision of the
Cherokee Nation.
6. ‘‘Fund’’ means the Cherokee Nation Judgment Fund.
7. ‘‘Indemnity’’ means any contract, agreement or assurance held by the
Cherokee Nation as security against an anticipated loss. This term shall
include any applicable insurance policy held by the Cherokee Nation for
protection against risks and perils except those specifically enumerated.
8. ‘‘Judgment’’ means any final judgment, award, or compromise settlement
payable in money for a sum certain against the Cherokee Nation.
Judgment includes all interest and costs specified in the judgment, award,
or compromise settlement, specifically including any attorney fees awarded
against the Cherokee Nation.
9. ‘‘Treasurer’’ means the Treasurer of the Cherokee Nation.
LA 08-16, eff. May 11, 2016.
§ 1404. Act governs
This Act governs all judgments, inclusive of attorney fees and interest,
entered against the Cherokee Nation or any department, agency or subdivision
thereof.
LA 08-16, eff. May 11, 2016.
§ 1405. Indemnification not waived-Gaming compact not affected
Nothing in this Act shall serve to disavow, disclaim or otherwise waive the
validity of any indemnification agreement held by the Cherokee Nation; nor
shall anything in this Act prevent the payment of judgment claims from the
same.
Nothing in this Act shall limit, alter or modify the respective obligations of
the Cherokee Nation or the State of Oklahoma under the Cherokee Nation
Tribal State Gaming Compact or any other applicable agreement.
Judgment claims paid through any applicable indemnity agreement shall be
deemed fully satisfied and thus barred from certification for payment from the
Fund.
LA 08-16, eff. May 11, 2016.
Oklahoma Statutes
State-Tribal Gaming Act, see 3A O.S. § 261 et seq.
§ 1406. Fund established
There is hereby established a special fund of the Cherokee Nation to be
known as the ‘‘Cherokee Nation Judgment Fund.’’ All monies accruing to the
credit of the Fund are hereby appropriated, and shall be budgeted and expended
by the Treasurer for the payment of eligible claims.
LA 08-16, eff. May 11, 2016.
§ 1407. Appropriations authorized
For each fiscal year, the Tribal Council may appropriate such amounts to the
Fund as the Tribal Council determines appropriate to satisfy certified judgments
arising during such fiscal year in full. No other funding source shall be
used to satisfy a properly certified judgment.
LA 08-16, eff. May 11, 2016.
§ 1408. Certification of judgments
All judgment claims shall be presented to the Attorney General for review
prior to submission for payment against the Fund. Whenever the Attorney
General determines that no further judicial review shall be sought from a
judgment, and that such judgment is otherwise unpaid, the Attorney General
shall certify the judgment for payment from the Fund.
LA 08-16, eff. May 11, 2016.
§ 1409. Claims allowed
A. A Claimant in possession of a certified judgment shall be entitled to
payment from the Fund by the Treasurer. All claims shall be presented on a
form prescribed by the Treasurer.
B. The Treasurer shall pay all allowed claims under this section on a first
come, first served basis.
C. The Treasurer shall not pay to any Claimant, in any single fiscal year, any
amount which exceeds one-half (1/2) of the balance of the Fund at the time of
payment. Any portion of a claim exceeding one-half of the balance of the Fund
shall be deemed a disallowed claim.
D. If the Treasurer determines any portion of a claim is disallowed under
this section, the Treasurer shall, at the same time the Treasurer pays the
amount of the allowed portion, notify the Claimant in writing of the amount of
the disallowed claim and basis for the determination. Such written notification
shall constitute recognition of the disallowed claim by the Treasurer.
E. Any disallowed claim shall constitute a new claim under subsection (A)
above. Such new claim shall bear interest at the applicable rate. The holder of a
disallowed claim may present the same to the Treasurer for payment in any
subsequent fiscal year after the fiscal year in which the determination of the
Treasurer was made.
F. The amount of the new claim under paragraph (C) above shall be an
amount equal to the amount of the disallowed claim plus applicable interest
allowed by law.
LA 08-16, eff. May 11, 2016.
§ 1410. Dormancy period
A. The Attorney General shall not certify any judgment unless such judgment
has been presented to him within one (1) year after the date of its
issuance.
B. Any certified judgment shall become unenforceable and be of no effect if,
within two (2) years after the date of certification by the Attorney General, it
has not be presented to the Treasurer for payment as claim.
C. Any disallowed claim shall become unenforceable and be of no effect if,
within two (2) years after the date of disallowance by the Treasurer, it has not
been presented to the Treasurer for payment as a new claim.
LA 08-16, eff. May 11, 2016.
CHAPTER 10
HARASSMENT
Section
1501. Short Title
1502. Definitions
1503. Course of conduct-Determination of purpose
1504. Protection Order-Petition
1505. Anti-harassment protection orders-Ex parte temporary-Hearing-Longer
term, renewal-Acts not prohibited
1506. Representation or appearance
1507. Service of Order
1508. Notice to law enforcement agencies-Enforceability
1509. Enforcement of order-Knowledge prerequisite to penalties-Reasonable efforts
to serve copy of order
1511. Other remedies
1512. Jurisdiction
1513. Criminal penalty
1514. Modification of order
1515. Constitutional rights
1516. Court appearance after violation
§ 1501. Short Title
This act shall be known and may be cited as the ‘‘Anti-Harassment Act of
2021’’.
LA 28-21, eff. June 18, 2021.
Historical and Statutory Notes
LA 28-21, Section 2, provides:
Section 2. Purpose
The purpose of this Act is to expand the civil
procedure code to protect against serious personal
harassment through repeated invasions of
a person’s privacy within the Cherokee Nation.
§ 1502. Definitions
1. ‘‘Course of conduct’’ means a pattern of conduct composed of a series of
acts over time, however short, evidencing a continuity of purpose. ‘‘Course of
conduct’’ includes, in addition to any other form of communication, contact, or
conduct, the sending of an electronic communication, but does not include
constitutionally protected free speech. Constitutionally protected activity is not
included within the meaning of ‘‘course of conduct.’’
2. ‘‘Unlawful harassment’’ includes unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at a specific
person which seriously alarms, annoys, harasses, or is detrimental to such
person, and which serves no legitimate or lawful purpose. The course of
conduct shall be such as would cause a reasonable person to suffer substantial
emotional distress, and shall actually cause substantial emotional distress to the
petitioner, or, when the course of conduct would cause a reasonable parent to
fear for the well-being of their child.
3. ‘‘Credible threat of violence’’ is a knowing and willful statement or course
of conduct that would place a reasonable person in fear for the person’s safety
or the safety of the person’s immediate family, and that serves no legitimate
purpose.
4. ‘‘Unlawful violence’’ is any assault or battery, or stalking prohibited in 21
CNCA § 1134, but does not include lawful acts of self-defense or defense of
others.
LA 28-21, eff. June 18, 2021.
§ 1503. Course of conduct-Determination of purpose
In determining whether the course of conduct serves any legitimate or lawful
purpose, the court should consider whether:
1. Any current contact between the parties was initiated by the respondent
only or was initiated by both parties;
2. The respondent has been given clear notice that all further contact with
the petitioner is unwanted;
3. The respondent’s course of conduct appears designed to alarm, annoy,
or harass the petitioner;
4. The respondent is acting pursuant to any statutory authority, including
but not limited to acts which are reasonably necessary to:
a. Protect property or liberty interests;
b. Enforce the law; or
c. Meet specific statutory duties or requirements;
5. The respondent’s course of conduct has the purpose or effect of
unreasonably interfering with the petitioner’s privacy or the purpose or
effect of creating an intimidating, hostile, or offensive living environment
for the petitioner;
6. Contact by the respondent with the petitioner or the petitioner’s family
has been limited in any manner by any previous court order.
LA 28-21, eff. June 18, 2021.
§ 1504. Protection Order-Petition
A person who has suffered harassment as defined in Section 1502 may seek a
temporary restraining order and an order after a hearing prohibiting harassment
as provided in this section.
There shall exist an action known as a petition a civil anti-harassment protection
order under this chapter.
1. A petition for relief shall allege the existence of harassment, shall allege
an appropriate jurisdictional basis for relief under Section 1512 of this
chapter, and shall be accompanied by an affidavit made under penalty of
perjury stating the specific facts and circumstances from which relief is
sought.
2. A petition for relief may be made regardless of whether or not there is
a pending lawsuit, complaint, petition, or other action between the parties.
3. No filing fee may be charged for a petition filed in an existing action or
under an existing cause number brought under this chapter.
4. A person is not required to post a bond to obtain relief in any
proceeding under this section.
5. The parent or guardian of a child under age eighteen may petition for
an order of protection to restrain a person age eighteen years or over from
contact with that child upon a showing that contact with the person to be
enjoined is detrimental to the welfare of the child.
6. The parent or guardian of a child under the age of eighteen may
petition the District Court for an order of protection to restrain a person
age eighteen years or over.
LA 28-21, eff. June 18, 2021.
§ 1505. Anti-harassment protection orders-Ex parte temporary-Hearing-
Longer term, renewal-Acts not prohibited
1. Upon filing a petition for a civil anti-harassment protection order under
this chapter, the petitioner may obtain an ex parte temporary anti-harassment
protection order. An ex parte temporary anti-harassment protection order may
be granted with or without notice upon the filing of an affidavit which, to the
satisfaction of the court, shows reasonable proof of unlawful harassment of the
petitioner by the respondent and that great or irreparable harm will result to
the petitioner if the temporary anti-harassment protection order is not granted.
If the court declines to issue an ex parte temporary anti-harassment protection
order, the court shall state the particular reasons for the court’s denial. The
court’s denial of a motion for an ex parte temporary order shall be filed with
the court.
2. An ex parte temporary anti-harassment protection order shall be effective
for a fixed period not to exceed fourteen days. The ex parte order may be
reissued. A full hearing, as provided in this chapter, shall be set for not later
than fourteen days from the issuance of the temporary order. The respondent
shall be personally served with a copy of the ex parte order along with a copy of
the petition and notice of the date set for the hearing. The ex parte order and
notice of hearing shall include at a minimum the date and time of the hearing
set by the court to determine if the temporary order should be made effective
for a term not to exceed one year, and notice that if the respondent should fail
to appear or otherwise not respond, an order for protection will be issued
against the respondent pursuant to the provisions of this chapter, for a maximum
of one year from the date of the hearing. The notice shall also include a
brief statement of the provisions of the ex parte order and notify the respondent
that a copy of the ex parte order and notice of hearing has been filed with the
clerk of the court.
3. At the hearing, if the court finds by a preponderance of the evidence that
unlawful harassment exists, a civil anti-harassment protection order shall issue
prohibiting such unlawful harassment.
4. An order issued under this chapter shall be effective for not more than
one year.
5. At any time within the three months before the expiration of the order,
the petitioner may apply for a renewal of the order by filing a petition for
renewal. The petition for renewal shall state the reasons why the petitioner
seeks to renew the protection order. Upon receipt of the petition for renewal,
the court shall order a hearing which shall be not later than fourteen days from
the date of the order. Personal service shall be made upon the respondent not
less than five days before the hearing. If timely service cannot be made the
court shall set a new hearing date and shall require additional attempts at
obtaining personal service. If the order expires because timely service cannot
be made the court shall grant an ex parte order of protection as provided in this
section. The court shall grant the petition for renewal unless the respondent
proves by a preponderance of the evidence that the respondent will not resume
harassment of the petitioner when the order expires. The court may renew the
protection order for another fixed time period, not to exceed one year.
6. The court, in granting an ex parte temporary anti-harassment protection
order or a civil anti-harassment protection order, shall have broad discretion to
grant such relief as the court deems proper, including an order:
a. Restraining the respondent from making any attempts to contact the
petitioner;
b. Restraining the respondent from making any attempts to keep the
petitioner under surveillance; and
c. Requiring the respondent to stay a stated distance from the petitioner’s
residence and workplace.
7. In issuing the order, the court shall order the respondent to surrender,
and prohibit the respondent from possessing, all firearms and any dangerous
weapons.
8. The court in granting an ex parte temporary anti-harassment protection
order or a civil anti-harassment protection order shall not prohibit the respondent
from exercising constitutionally protected free speech. Nothing in this
section prohibits the petitioner from utilizing other civil or criminal remedies to
restrain conduct or communications not otherwise constitutionally protected.
9. The court in granting an ex parte temporary anti-harassment protection
order or a civil anti-harassment protection order shall not prohibit the respondent
from the use or enjoyment of real property to which the respondent has a
cognizable claim unless that order is issued under a separate action commenced
with a summons and complaint to determine title or possession of real
property.
10. The court in granting an ex parte temporary anti-harassment protection
order or a civil anti-harassment protection order shall not limit the respondent’s
right to care, control, or custody of the respondent’s minor child.
11. A petitioner may not obtain an ex parte temporary anti-harassment
protection order against a respondent if the petitioner has previously obtained
two such ex parte orders against the same respondent but has failed to obtain
the issuance of a civil anti-harassment protection order unless good cause for
such failure can be shown.
12. The court order shall specify the date an order issued pursuant to
subsections (4) and (5) of this section expires if any.
LA 28-21, eff. June 18, 2021.
§ 1506. Representation or appearance
1. Nothing in this chapter shall preclude either party from representation by
private counsel or from appearing on his or her own behalf.
2. The court may require the respondent to pay the filing fee and court costs,
including service fees, and to reimburse the petitioner for costs incurred in
bringing the action, including a reasonable attorney’s fee. If the petitioner has
been granted leave to proceed in forma pauperis, the court may require the
respondent to pay the filing fee and costs, including service fees.
LA 28-21, eff. June 18, 2021.
§ 1507. Service of Order
1. An order issued under this chapter shall be personally served upon the
respondent, except as provided in subsections (5) and (7) of this section.
2. The Cherokee Nation Marshal Service or a cross-deputized law enforcement
officer shall serve the respondent personally unless the petitioner elects to
have the respondent served by a private party. If the order includes a
requirement under Section 1505 for the immediate surrender of all firearms
and any dangerous weapons, the order must be served by a law enforcement
officer.
3. If the Cherokee Nation Marshal Service or a cross-deputized law enforcement
officer cannot complete service upon the respondent within ten days, the
Marshal or law enforcement officer shall notify the petitioner.
4. Returns of service under this chapter shall be made in accordance with
the applicable court rules.
5. If an order entered by the court recites that the respondent appeared in
person before the court, the necessity for further service is waived and proof of
service of that order is not necessary. The court’s order, entered after a
hearing, need not be served on a respondent who fails to appear before the
court, if material terms of the order have not changed from those contained in
the temporary order, and it is shown to the court’s satisfaction that the
respondent has previously been personally served with the temporary order.
LA 28-21, eff. June 18, 2021.
§ 1508. Notice to law enforcement agencies-Enforceability
A copy of an anti-harassment protection order granted under this chapter shall
be forwarded by the clerk of the court on or before the next judicial day to the
Cherokee Nation Marshal Service.
Upon receipt of the order, the Marshal Service shall forthwith enter the order
into any computer-based criminal intelligence information system available in
this Nation used by law enforcement agencies to list outstanding warrants.
The Marshal Service shall expunge expired orders from the computer system.
Entry into the law enforcement information system constitutes notice to all law
enforcement agencies of the existence of the order. The order is fully enforceable
throughout the boundaries of the Cherokee Nation Reservation.
LA 28-21, eff. June 18, 2021.
§ 1509. Enforcement of order-Knowledge prerequisite to penalties-Reasonable
efforts to serve copy of order
1. When the court issues an order of protection pursuant to this chapter, the
court shall advise the petitioner that the respondent may not be subjected to the
penalties set forth herein for a violation of the order unless the respondent
knows of the order.
2. When the Cherokee Nation Marshal Service or a cross-deputized peace
officer investigates a report of an alleged violation of an order for protection
issued under this chapter the officer shall attempt to determine whether the
respondent knew of the existence of the protection order. If the officer
determines that the respondent did not or probably did not know about the
protection order, the officer shall make reasonable efforts to obtain a copy of
the protection order and serve it on the respondent during the investigation.
LA 28-21, eff. June 18, 2021.
§ 1511. Other remedies
Nothing in this chapter shall preclude a petitioner’s right to utilize other
existing civil remedies.
LA 28-21, eff. June 18, 2021.
§ 1512. Jurisdiction
The Cherokee Nation District Court may exercise jurisdiction over any action
or proceeding brought under this chapter. Any order issued pursuant to this
chapter shall be enforceable only within the boundaries of the Cherokee Nation
Reservation.
LA 28-21, eff. June 18, 2021.
§ 1513. Criminal penalty
Any respondent age eighteen years or over who willfully disobeys any civil antiharassment
protection order issued pursuant to this chapter shall be guilty of a
misdemeanor, punishable by imprisonment for a term not the exceed one (1)
year or by a fine in an amount not to exceed Three Thousand Dollars
($3,000.00), or by both such fine and imprisonment.
LA 28-21, eff. June 18, 2021.
§ 1514. Modification of order
Upon application with notice to all parties and after a hearing, the court may
modify the terms of an existing order under this chapter. A respondent may
file a motion to terminate or modify an order no more than once in every
twelve-month period that the order is in effect, starting from the date of the
order and continuing through any renewal. In any situation where an order is
terminated or modified before its expiration date, the clerk of the court shall
forward on or before the next judicial day a true copy of the modified order or
the termination order to the Cherokee Nation Marshal Service specified in the
modified order or termination order. Upon receipt of the order, the Cherokee
Nation Marshal Service shall promptly enter it in the law enforcement information
system.
LA 28-21, eff. June 18, 2021.
§ 1515. Constitutional rights
Nothing in this chapter shall be construed to infringe upon any constitutionally
protected rights including, but not limited to, freedom of speech and freedom of
assembly.
LA 28-21, eff. June 18, 2021.
§ 1516. Court appearance after violation
1. A defendant arrested for violating any civil anti-harassment protection
order issued pursuant to this chapter is required to appear in person within 48
hours after the arrest. At the time of the appearance, the court shall determine
the necessity of imposing a no-contact order or other conditions of pretrial
release.
2. A defendant who is charged by citation, complaint, or information with
violating any civil anti-harassment protection order issued pursuant to this
chapter and not arrested shall appear in court for arraignment in person as
soon as practicable, but in no event later than fourteen days after the next day
on which court is in session following the charge.
3. Appearances required pursuant to this section are mandatory and cannot
be waived.
LA 28-21, eff. June 18, 2021.