Tribal Council, AG revamp civil code

BY JAMI MURPHY
Former Reporter
08/05/2016 12:00 PM
TAHLEQUAH, Okla. – The Tribal Council during its July meeting amended the Cherokee Nation’s civil code that, according to the attorney general’s office, was long overdue.

Attorney General Todd Hembree said major changes involve creating causes of actions and procedures designed to modernize the court system.

“There was an increase to statute of limitations, which is the time frame in which a Cherokee citizen can bring a cause of action,” Hembree said. “Previously, most cases could be brought within two years. Now most cases can be brought within five years, with some having a three-year limitation.”

According to legislation, 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:

• Within five years: an action upon any contract, agreement, or promise in writing,

• Within three 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.

Another change states that the statue of limitations is one year for action for libel, slander, malicious prosecution or false imprisonment.

Hembree said also now allowing the attorney general’s office to bring actions on behalf of the CN and its citizens as “parens patriae” would have the effect of protecting the Nation and its citizens from unfair practices and harmful products.

“The Cherokee Nation Attorney General may bring a civil action in the name of the Cherokee Nation as parens patriae on behalf of tribal members of the Cherokee Nation to secure monetary relief for injuries and damages sustained by such persons by reason of any violation of law, including but not limited to, violations of the Cherokee Nation Unfair & Deceptive Practices Act,” the legislation states.

Also within the civil code amendments was a modernization of the tribe’s wrongful death statue.

“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,” legislation states. “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.”

This action to recover damages must be commenced within five years of the date of death or from five years of when the next of kin knew or in the exercise of reasonable diligence.

Damages recoverable include medical and burial expenses, loss of consortium and grief of the surviving spouse, mental pain and anguish suffered by the decedent, pecuniary loss to the survivors, grief or loss of companionship of the children and parents of decedent, fair monetary value of the decedent to the personal entitled to receive damages and punitive or exemplary damages may also be recovered.

Legislation changes also include creating a section for class action lawsuits creating a cause of actions for unfair and deceptive practices and creating a cause of action for false advertising.

According to legislation, all persons may join in one action as plaintiffs if “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 “they have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.”

Hembree said the changes within the legislation stemmed from “attacks that have been occurring on tribal courts by outside parties.”

“Although, the U.S. Supreme Court failed to decide what jurisdiction tribal courts had on non-tribal citizens or entities, because of a 4-4 tie, we can expect future attacks on tribal courts. This means we must take measures to strengthen our systems, make them easy to navigate, make them accessible to all. With these changes the Cherokee Nation has gone far in accomplishing these goals,” Hembree said.

To view all changes, visit https://cherokee.legistar.com/LegislationDetail.aspx?ID=2723275&GUID=50B9140F-1CED-41FA-A0F2-2980774E16D2&FullText=1.

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