Laws and Rules of the (2021)
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Laws and Rules of the
Non-Removable Mille Lacs
Band of Ojibwe
Supplement - 2021
Introduction
On December 3, 2020, the Chief Executive signed into law Ordinance 08-21, adopting a
Revisor of Statutes Code. The law is codified into Band statutes as Title 25. Section 10
allows the Revisor to publish a supplement to the Laws and Rules of the Non-Removable
Mille Lacs Band of Ojibwe. The Laws and Rules of the Non-Removable Mills Lacs Band of
Ojibwe must be published no later than May 1.
During the fiscal year 2021, the following twelve Titles were amended. Please continue to
check the Tribal Register for the most current law.
Hanna Valento
Revisor of Statutes
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Table of Contents
Title 3 – Legislative Branch ......................................................................................................... 4
Title 8 – Children and Families ................................................................................................. 22
Title 11 – Environment, Natural Resources, Animals And Plants ......................................... 76
Title 12 – Community Development .......................................................................................... 93
Title 13 – REPEALED .............................................................................................................. 146
Title 14 – REPEALED .............................................................................................................. 147
Title 15 – Gaming Regulatory Act ........................................................................................... 148
Title 17 – Banks And Banking ................................................................................................. 156
Title 21 – Real and Personal Property .................................................................................... 162
Title 24 – Judicial Proceedings ................................................................................................ 171
Title 25 – Revisor of Statutes ................................................................................................... 184
Title 26 – Compensation of Elected Officials ......................................................................... 196
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TITLE 3 - LEGISLATIVE BRANCH
Section
1. Definitions.
2. Band Assembly.
3. Legislative Power.
4. Initiative and Referendum.
5. Band Assembly Members.
6. Terms of Office.
7. Powers and Duties of Speaker of Assembly.
8. Powers and Duties of the Secretary-Treasurer.
9. Powers and Duties of District Representatives.
10. Parliamentarian/Clerk of the Band Assembly.
11. Record of Proceedings.
12. Rules of Band Assembly.
13. Membership of Band Assembly.
14. Quorum.
15. Roll Call Vote.
16. Compensation.
17. Passage of Laws.
18. Annulment of Commissioner's Orders and Opinions of Solicitor General.
19. Appropriation Bills Prior to End of Fiscal Year.
20. Fiscal Year.
21. Petitions of Members of Band.
22. Legislative Privilege.
23. Assembly Powers of Inquiry.
24. Multi-Topic Bills.
25. Joint Session of Band Assembly.
26. Removal of Elected Officials or Appointees.
27. Elections.
28. Legislative Orders.
29. Style of Laws.
30. Effective Date for Bills, Orders, and Resolutions.
31. Interpretation of Title.
32. Construction of Title.
§ 1. Definitions.
The definitions in this section shall apply to this Title.
(a)
“Band” means the Non-Removable Mille Lacs Band of Ojibwe.
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(b)
“Band Assembly” means the Band’s legislative branch, established pursuant to
3 MLBS § 1, and comprised of the duly elected Speaker of the Assembly and three
(3) District Representatives.
(c)
“Bill” means proposed legislation under consideration by the Band Assembly.
(d)
“Chief Executive” means the elected official who leads the Band’s executive branch
pursuant to 4 MLBS § 6.
(e)
“Clerk of the Band Assembly” means the appointed official pursuant to 3 MLBS
§ 10 who is responsible for managing the session proceedings, record-keeping, and
bill drafting.
(f)
“Formal Public Hearing” means a hearing conducted by the Band Assembly
pursuant to 3 MLBS § 17(a).
(g)
“Joint Session of the Band Assembly” means a meeting with the four (4) members
of the Band Assembly and the Chief Executive, convened pursuant to 3 MLBS § 25.
(h)
“Opinion” means a written interpretation of Band laws, policies, or legislative,
secretarial, or commissioner’s orders pursuant to 4 MLBS § 18.
(i)
“Ordinance” means a law adopted by the Band Assembly and signed by the Chief
Executive.
(j)
“Parliamentarian” means the appointed official pursuant to 3 MLBS § 10 who is
trained in parliamentary law and in the rules, precedents, and practices of the Band
Assembly.
(k)
“Resolution” means a formal expression of opinion, will, or intention voted on by
the Band Assembly.
(l)
“Resolution of the Joint Session of the Band Assembly” means a resolution of the
Joint Session of the Band Assembly, which is voted on by the Band Assembly,
including the Speaker of the Assembly, and the Chief Executive.
(m)
“Secretary-Treasurer” means the elected official who has the powers and duties in
administrating the Band’s financial affairs pursuant to 3 MLBS § 8.
(n)
“Speaker of the Assembly” means the elected official who leads the Band’s
legislative branch pursuant to 3 MLBS § 7.
(o)
“Statute” means an ordinance that has been codified into Band law pursuant to
Title 25.
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Historical and Statutory Notes
Source:
Band Ordinance 38-21.
§ 2. Band Assembly.
(a)
All legislative political authority of the Non-Removable Mille Lacs Band of Ojibwe
shall be vested in the Legislative Branch of government. The Legislative Branch of
government shall be known as the Band Assembly. It shall be comprised of the duly
elected representatives of the legislative districts of the Mille Lacs Reservation. Each
District shall elect one representative. The Districts are as follows:
(1)
District 1: Nay-Ah-Shing (Vineland);
(2)
District 2: Mi-ni-si-na-kwang (East Lake), Chi-mini-sing (Isle), Ga-me-tawa-ga-gi-mog (Sandy Lake), and Chi-manoominikaang (Minnewawa); and
(1)
District 3: Ga-shi-gwa-na-bi-go-gog (Hinckley), Ah-zhoo-moog (Lake Lena),
Ne-shi-gwa-go-gog (Pine City), and A-sin-ni-ga-ning (Sandstone).
(b)
The Secretary-Treasurer shall be the leader of the Band Assembly. The SecretaryTreasurer shall exercise his/her legislative duties under the title "Speaker of the
Assembly." The Secretary-Treasurer shall exercise his/her financial duties under the
title "Secretary of Treasury."
(c)
Unless otherwise specified by Band Statute, all legislative authority of the Mille Lacs
Reservation Business Committee shall be exercised by the Band Assembly. The
Band Assembly is and shall be the body referred to in the Constitution as the
Reservation Business Committee.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 4.01.
Band Ordinance 38-21.
Cross References
Designation of band districts, see 2 MLBS§ 11.
Functions of governmental authority, see 2 MLBS § 4.
Reservation Business Committee, see Const. Art. 3, § 2.
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§ 3. Legislative Power.
It shall be the authority and duty of the Legislative Branch to enact laws which regulate internal
and external affairs of the Band in order to promote the general welfare of the people. The Band
Assembly shall have power:
(a)
to enact laws which promote the general welfare of the people;
(b)
to appropriate all Band revenue regardless of source;
(c)
to confirm appointments of the Chief Executive, which are by law required to be
with the advice and consent of the Band Assembly;
(d)
to adopt resolutions;
(e)
to annul any Commissioner's Order or any opinion of the Solicitor General in
conformity with 3 MLBS § 18;
(f)
to ratify agreements, contracts, cooperative and reciprocity agreements and
memoranda of understanding; and
(g)
to perform all other legislative functions conferred by the provisions of Article VI
of the Constitution of the Minnesota Chippewa Tribe.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 5.
Band Ordinance 38-21.
Cross References
Consolidated Nay-Ah-Shing School Board; powers reserved to Band Assembly, see 9 MLBS § 15.
Education-related funds, appropriation authority, see 9 MLBS § 27.
Gaming, Compacts with State of Minnesota, see 15 MLBS § 106.
Management agreements, ratification, see 15 MLBS § 105.
Negotiation and execution of agreements, contracts, etc., see 4 MLBS § 3.
Recommendation of agreements, contracts, etc., see 4 MLBS § 6.
Violation of approved Tribal Ordinance, see 24 MLBS § 1211.
§ 4. Initiative and Referendum.
(a)
The legislative authority of the Non-Removable Mille Lacs Band of Ojibwe is vested
in the Band Assembly, but there is reserved to the people the power to propose bills
and laws and to enact or reject the same at the polls, independent of the Band
Assembly and at their own option, to approve or reject at the polls any item, section
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or part of any bill or law passed by the Band Assembly, subject to election
regulations promulgated by the Band Assembly.
(b)
The power of the people to approve or reject at the polls any item, section or part of
any bill or law passed by the Band Assembly shall be exercised by filing a petition
with the Secretary-Treasurer, signed by at least five percent (5%) of the Band
members entitled to vote in tribal elections based on the total number of registered
voters at the last preceding tribal election, within 20 calendar days after the passage
of such bill or law. Newly enacted bills and laws shall be posted in each district
within five (5) calendar days of enactment and shall remain posted until 20 calendar
days have passed after enactment. The same petition requirements, excluding the 20day limitation, shall apply to the power of the people to propose new bills and laws.
An election regarding such initiative or referendum shall be held within 30 calendar
days after the filing of the petition.
(c)
The people shall not have the power to approve or reject at the polls any item, section
or part of any bill or law passed by the Band Assembly prior to September 19, 1992.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 6.
Band Ordinance 08-93.
Band Ordinance 38-21.
§ 5. Band Assembly Members.
The Band Assembly shall be comprised of the popularly-elected Secretary-Treasurer who shall
be the Speaker of the Assembly, and the popularly elected District Representatives from each of
the three (3) districts within the territorial jurisdiction of the Reservation. Each District
Representative shall have one (1) vote in the Band Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 7.
Band Ordinance 38-21.
§ 6. Terms of Office.
The terms of office of the members of the Band Assembly shall be the term prescribed for the
Secretary-Treasurer and Committeemen of the Reservation Business Committee in Article IV,
§ 3, of the Constitution.
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Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 8.
§ 7. Powers and Duties of Speaker of Assembly.
(a)
(a)
The Speaker of the Assembly shall be the leader of the Legislative Branch of
Government and have the following authority in exercising said authority of
government:
(1)
to convene the Band Assembly for due cause at any time. In the event that
he/she shall fail to do so upon request of any two District Representatives, the
Assembly may be convened after 48 hours’ notice by any member of the Band
Assembly;
(2)
to be considered as a member of the Band Assembly for purposes of
establishing a quorum;
(3)
to require the prompt recording of the Band Assembly's acts and deeds;
(4)
to schedule all special hearings of the Band Assembly upon request of any
two District Representatives;
(5)
to have the powers of authorization for issuance of all subpoenas and official
documents on behalf of the Band Assembly; and
(6)
to maintain order in all sessions of the Band Assembly.
The Speaker of the Assembly shall not be a voting member of the Band Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 9.
Band Ordinance 38-21.
§ 8. Powers and Duties of Secretary-Treasurer.
The Secretary-Treasurer shall have the following general powers and duties in administrating
the financial affairs of Band government:
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(a)
to superintend and manage all fiscal operations, planning and budgeting of the
Non-Removable Mille Lacs Band of Ojibwe as authorized by the Band
Assembly;
(b)
to enforce on behalf of the Band, all judgments and claims rendered in its
favor;
(c)
to receive and receipt for all monies paid into the Band treasury and safely
keep the same until lawfully disbursed by formal appropriation;
(d)
to have powers of investigations of financial irregularity;
(e)
to require the production of such books, accounts, documents and property
under any lawful financial inquiry in all things that will aid him/her in the
performance of his/her duties;
(f)
to levy, impound or attach any financial account of the Non-Removable Mille
Lacs Band of Ojibwe or any political subdivision thereof to prevent serious
financial jeopardy or acts in violation of law. This authority shall not be
exercised to contravene any lawful acts of the Band Assembly;
(g)
to issue Secretarial Orders to implement decisions concerning matters of the
fiscal affairs of the Band consistent with the powers herein delegated. Such
written orders shall be in uniform format, numbered consecutively and have
expiration dates;
(h)
to nominate in conjunction with the Chief Executive a suitable person to act as
the Commissioner of Finance;
(i)
the Secretary-Treasurer shall post a fidelity bond in favor of the NonRemovable Mille Lacs Band of Ojibwe in an amount satisfactory to the Band
Assembly; and
(j)
the Secretary-Treasurer shall coordinate with the Commissioner of Finance for
the Office of Management and Budget, to ensure that financial planning and
operations are consistent.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 10.
Band Ordinance 38-21.
Cross References
Commissioner of Finance, see 22 MLBS § 101 et seq.
Public Works Commission, financial record system, see 13 MLBS § 14.
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Review of proposed procurement actions, see 7 MLBS § 6.
Violation of Secretarial Orders, see 24 MLBS § 1212.
§ 9. Powers and Duties of District Representatives.
(a)
(b)
The District Representatives shall have the following individual authority in the
exercise of legislative powers of Band government:
(1)
To introduce into the Band Assembly appropriate bills promoting the general
welfare of the people for enactment into the laws of the Band.
(2)
To establish district committees within their respective districts for the
purpose of aiding them in the performance of their legislative duties.
(3)
To chair public hearings on any proposed law within their appropriate district.
(4)
To attend all sessions of the Band Assembly when called upon by the Speaker
of the Assembly. The failure to attend any session of the Band Assembly shall
require the official consent of the Band Assembly in order to consider said
absence as excused.
(5)
To represent the community interests of the district from which the
Representative was elected. The Representative shall exercise this duty fairly
and impartially in order to promote the general welfare of all district residents.
(6)
To authorize the use of district community centers according to written
standards that are fair and reasonable.
(7)
To comply with the provisions of the oath of office of a District
Representative.
(8)
To refrain from the disclosure or distribution of any privileged or confidential
information or documents that may come into their possession as a result of
their office.
(9)
To perform all legislative and other duties as may be assigned by the Speaker
of the Assembly or the Band Assembly.
No popularly-elected District Representative to the Band Assembly shall exercise any
of the authority properly belonging to either the Executive or Judicial branches of
government or to any officer who is appointed to serve the Non-Removable Mille
Lacs Band of Ojibwe.
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Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 11.
Band Ordinance 38-21.
Cross References
Community centers, use, see Exec. Order 033.
Division of powers, see 2 MLBS § 3.
Functions of Band government, see 2 MLBS § 4.
§ 10. Parliamentarian/Clerk of the Band Assembly.
The Band Assembly shall appoint an individual, not a member of the Band Assembly, who shall
act as Parliamentarian and Clerk of the Band Assembly. The Parliamentarian shall be
independent of any supervisory authority in the Band Assembly. All parliamentary decisions
shall be rendered in an impartial manner. The Parliamentarian may be removed from office by
unanimous vote of the Band Assembly in concurrence with the Speaker of the Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2 § 12.
Band Ordinance 38-21.
§ 11. Record of Proceedings.
It shall be the duty of the Clerk of the Band Assembly to record all official minutes of the
proceedings of the Band Assembly. The Clerk of the Band Assembly shall add the meeting
minutes to the next scheduled Band Assembly agenda for Band Assembly approval. The official
record of the proceedings of the Band Assembly shall be prima facie evidence of the facts stated
therein in the Court of Central Jurisdiction and any other court of competent jurisdiction.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 12.01.
Band Ordinance 38-21.
§ 12. Rules of Band Assembly.
The Band Assembly shall establish the rules of its proceedings, decide upon its adjournment and
discipline of its members through censure for improper conduct as a Band Assembly member;
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or other disciplinary action, provided, however, that removal shall be governed by 3 MLBS
§ 25(a), but not twice for the same offense.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 13.
Band Ordinance 38-21.
§ 13. Membership of Band Assembly.
The Band Assembly shall be defined as all popularly-elected or appointed members, in the case
of vacancies that may be filled pursuant to the provisions of Minnesota Chippewa Tribal
Election Ordinance Number 4. The Chief Executive shall not be a member of the Band
Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 14.
§ 14. Quorum.
Any three (3) members shall constitute a quorum to transact business of the Band Assembly.
The Speaker of the Assembly shall be considered as a member of the Band Assembly for the
purpose of establishing a quorum.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 14.01.
§ 15. Roll Call Vote.
In all votes of the Band Assembly, a roll call vote may be utilized upon the request of any
Representative and their roll call vote shall be entered for the record. Otherwise, all other votes
may be consensual.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 15
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§ 16. Compensation.
The compensation for members of the Band Assembly shall be prescribed by Band Law
provided that sufficient funds are available for said compensation. No increase in compensation
shall take effect during the period for which the existing membership of the Band Assembly has
been elected after July 1, 1984.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 16.
§ 17. Passage of Laws.
(a)
The Band Assembly shall conduct formal public hearings on any bill which alters,
amends, or repeals Titles 1, 3, 4 and 5, Chapter 1 of Title 2, and Subchapters 1 to 3 of
Chapter 3 of Title 24 of the Mille Lacs Band Statutes. The Band Assembly may
conduct formal public hearings on any or all other bills at their discretion. Formal
public hearings shall be held in all appropriate districts of the Band’s Reservation
prior to the time that the Band Assembly seeks to formally act upon said bill.
Additionally, each bill shall be posted in a conspicuous location for ten (10) calendar
days after said bill has been introduced at a formal public hearing. This provision
shall not apply to any bill on which no formal public hearing has been held.
(b)
A majority vote of the three (3) District Representatives shall be required for the
passage of each bill.
(c)
After the formal action of the Band Assembly, no later than 72 hours after said action,
each bill shall be personally delivered to the Chief Executive, who shall have five (5)
calendar days from the date of receipt to either sign the bill into law, or veto the bill
and return it to the Band Assembly with a written veto message containing the
objections to the bill. In the event the Chief Executive neither signs the bill nor vetoes
it, it shall become law without the Chief Executive’s signature after the expiration of
five (5) calendar days from date of receipt of the bill.
(d)
The Clerk of the Band Assembly shall certify the date and time that each bill has been
forwarded to the Chief Executive for action. This date shall be utilized to determine
the appropriate five (5) calendar day time period found in subsection (c).
(e)
Any bill which has been vetoed and returned by the Chief Executive shall have a
compromise hearing within five (5) calendar days of the return. Failure of the Band
Assembly to act within the five (5) calendar days shall halt further action on said bill
for 180 calendar days. Should the Band Assembly hold a compromise hearing with
the Chief Executive within the allocated time, 15 calendar days shall be available to
negotiate an agreement for the bill's passage into law. Should an agreement not be
concluded within the allotted time, further action on the bill is precluded for 180
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calendar days from said date. Appropriation bills shall be excluded from the above
time schedule.
(f)
An appropriation bill which has been returned by the Chief Executive shall have a
compromise hearing within three (3) calendar days of the return to the Band
Assembly. Negotiations shall commence with the Chief Executive on the fourth
calendar day thereafter and shall continue until a compromise has been achieved.
During this time the Band Assembly is precluded from adjourning.
(g)
A veto by the Chief Executive is a total veto of the entire bill. Sectional vetoes shall
be prohibited pursuant to the provisions of this section.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 17.
Band Ordinance 38-21.
Cross References
Approval of laws by Tribal Executive Committee, see Const. Art. 15, § 3.
Chief Executive's powers and duties, see 4 MLBS § 6.
Great Lakes Indian Fish and Wildlife Compact withdrawal, see 2 MLBS § 1157.
Land consolidation, applicability of federal law and regulations, see 21 MLBS § 104.
Review of laws by Secretary of Interior, see Const. Art. 15, § 2.
Violation of approved Tribal Ordinance, see 24 MLBS § 1211.
§ 18. Annulment of Commissioner's Orders and Opinions of Solicitor General.
The Band Assembly shall have five (5) calendar days from the date of receipt of such order or
opinion to submit notice of its intent to annul any Commissioner's Order or the Opinion of the
Solicitor General. Said notice shall be directed to the attention of the Chief Executive and the
appropriate Commissioner or Solicitor General. Within ten (10) consecutive days thereafter, the
Band Assembly shall hold a hearing on the proposed annulment of the Commissioner's Order or
the Opinion of the Solicitor General. At such hearing the appropriate Commissioner or the
Solicitor General shall appear before the Band Assembly to justify the particular
Commissioner's Order or Opinion of the Solicitor General. The Band Assembly, within five (5)
consecutive days after said hearing, may act to either accept the said Commissioner's Order or
Opinion of the Solicitor General or act to annul, in whole or in part, the particular
Commissioner's Order or Opinion of the Solicitor General.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 19.
Band Ordinance 38-21.
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Cross References
Commissioner of Corporate Affairs, Commissioner's Orders, see 16 MLBS § 6.
Commissioner's Orders, see 4 MLBS § 7
Opinions of Solicitor General, see 4 MLBS § 18.
§ 19. Appropriation Bills.
Should the Band Assembly fail to pass an appropriation bill before the start of the Band's
biennium or should said bill be vetoed by the Chief Executive, all fiscal operations of the Band
shall cease as of midnight of the last day of the biennium, unless the Band Assembly adopts a
continuing resolution prior to such time.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 20.
Band Ordinance 23-99, §§ 2, 3.
Cross References
Preparation and submission of budget requests, see 4 MLBS § 3.
§ 20. Fiscal Year.
The fiscal year of the Non-Removable Mille Lacs Band of Ojibwe shall be October 1 through
September 30 of each calendar year.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 20.01.
Band Ordinance 38-21.
§ 21. Petitions of Members of Band.
The Band Assembly shall pass no law or legislative order which abridges the rights of the
membership to petition the Band Assembly on matters of the Band government.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 21.
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§ 22. Legislative Privilege.
No member of the Band Assembly shall be subject to suit or criminal prosecution brought
against him or her for acts performed and remarks made in any session of the Band Assembly.
This shall not, however, preclude judicial review in a proper case, of the constitutionality or
legality of acts and decisions taken by the Band Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 22
§ 23. Assembly Powers of Inquiry.
(a)
The Band Assembly shall have the power to hold Hearings of Inquiry on any
issue affecting the general welfare of the Band or its members. Said power shall
include the power to issue subpoenas and cause them to be served and enforced,
and the power to impound records or documents that will aid the Band Assembly
in fulfilling its responsibility to the members of the Band.
(b)
All official Hearings of Inquiry of the Band Assembly shall be held according to
4 MLBS §§ 13 and 14.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 23.
Band Ordinance 38-21.
§ 24. Multi-Topic Bills.
The Band Assembly may pass any bill with many topics and shall not be limited to one topic for
any one bill.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 24.
Band Ordinance 38-21.
§ 25. Joint Session of Band Assembly.
(a)
The Joint Session of the Band Assembly may be convened for the purpose of
considering removal of members and officers as prescribed in Article X of the
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Constitution of the Minnesota Chippewa Tribe. Vacancies on the Band Assembly
shall also be filled by appointment of the Joint Session of the Band Assembly.
Appointees shall serve until the next election prescribed by the Election Ordinance
Number 4. The Joint Session of the Band Assembly may be convened only by the
Speaker of the Assembly. In the event that the Speaker of the Assembly shall refuse
to convene the Joint Session of the Band Assembly under extraordinary
circumstances, the remaining four members of the Joint Session of the Band
Assembly may convene said session by presenting to the Speaker of the Assembly a
notice of intent to hold said meeting and describing the time and place for said
meeting.
(b)
The membership of the Joint Session of the Band Assembly shall be the Speaker of
the Assembly, who shall preside, the District One Representative, the District Two
Representative, the District Three Representative, and the Tribal Chairman/Chief
Executive.
(c)
Except as specifically authorized by any provision of the Constitution of the
Minnesota Chippewa Tribe, the Joint Session of the Band Assembly shall take no
action which serves to undermine or encroaches upon the distribution of the authority
of the Band as found in Titles 1 to 5 of the Mille Lacs Band Statutes.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 25.
Band Ordinance 38-21.
Cross References
Division of powers, see 2 MLBS § 3.
Functions of government authority, see 2 MLBS § 4.
Powers and duties of Chief Executive, see 4 MLBS § 6.
§ 26. Removal of Elected Officials or Appointees.
(a)
The Joint Session of the Band Assembly shall have powers of impeachment over
popularly-elected officials of the Non-Removable Mille Lacs Band of Ojibwe, as well
as appointees of the Chief Executive as stated and defined in Title 4 of the Mille Lacs
Band Statutes. The cause of removal shall be as found in Article X, Section 2, of the
Constitution of the Minnesota Chippewa Tribe. All removal proceedings of the Joint
Session of the Band Assembly shall be made in concert with the provisions of Article
X, Section 3 of the Constitution of the Minnesota Chippewa Tribe.
(b)
On matters of removal, the Speaker of the Assembly shall have one (1) vote and the
Chief Executive shall have one (1) vote. A two-thirds majority vote of the Joint
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Session of the Band Assembly shall be required to remove any popularly-elected
officer of the Band.
(c)
No popularly-elected official of the Joint Session of the Band Assembly shall vote on
any issue related to removal of said officer in which that officer is the topic of the
removal proceedings.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 26.
Band Ordinance 38-21.
Cross References
Commissioner for corporate Affairs, removal from office, see 16 MLBS § 3.
Consolidated Nay-Ah-Shing School Board, removal from office, see 9 MLBS § 6.
Court of Appeals Justices, removal for cause, see 5 MLBS §§ 5, 11.
District Court Judge, removal for cause, see 5 MLBS §§ 7, 10, 11.
Employee Credit Union, Board of Directors, terms and removal, see 17 MLBS § 4.
Recall of appointed officials, see 4 MLBS § 15.
§ 27. Elections.
The Joint Session of the Band Assembly shall have the power to call an election at any time;
however, elections established under Article IV, Section 1 of the Constitution and By-Laws of
the Minnesota Chippewa Tribe shall be held when directed by the two-thirds majority vote of
the Tribal Executive Committee of the Minnesota Chippewa Tribe. Upon the official action of
the Joint Session of the Band Assembly or the Tribal Executive Committee, the Chief Executive
shall cause to have prepared and distributed an official Writ of Election.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 27.
§ 28. Legislative Orders.
(a)
The Band Assembly of the Non-Removable Mille Lacs Band of Ojibwe may issue
Legislative Orders on any subject matter within the Legislative Branch of government
pursuant to authority conferred by this Title and the Constitution of the Minnesota
Chippewa Tribe. Any said Legislative Order shall be authorized by a majority vote of
the members of the Band Assembly. All members of the Band Assembly, as well as
the Speaker of the Assembly, shall affix their signatures to any said Legislative
Order, however, the failure of one or two members of the Band Assembly to
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countersign any Legislative Order shall not invalidate the Order provided it is passed
by a majority vote of the Band Assembly under its rules of procedure.
(b)
All said Legislative Orders shall be consecutively numbered and bear the signature of
the Solicitor General as to form and execution and have the official seal of the Band
affixed thereto.
(c)
The Clerk of the Band Assembly shall be responsible for safe keeping of original
copies of all Legislative Orders. All Legislative Orders shall have the full force of law
of the Band until amended or repealed. The Clerk of the Band Assembly shall
produce and distribute all Legislative Orders within 24 hours after formal enactment
of the Band Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 28.
Band Ordinance 38-21.
§ 29. Style of Laws.
The style of laws of the Non-Removable Mille Lacs Band of Ojibwe shall be: "Be it enacted by
the Band Assembly of the Non-Removable Mille Lacs Band of Ojibwe." And no laws shall be
enacted except by bill.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 29.
Band Ordinance 38-21.
§ 30. Effective Date for Bills, Orders, and Resolutions.
(a)
If a Bill does not have an effective date, the effective date shall be immediately upon
a majority vote of the Band Assembly and either the signature of the Chief Executive
or the absence of action by the Chief Executive as prescribed in § 17(c).
(b)
If a Legislative Order does not have an effective date, the effective date shall be
immediately upon a majority vote of the Band Assembly.
(c)
If a Secretarial Order does not have an effective date, the effective date shall be
immediately upon the signature of the Secretary-Treasurer.
20
Historical and Statutory Notes
Source:
Band Ordinance 38-21.
§ 31. Interpretation of Title.
Should there be any doubt as to the proper interpretation of any part of this title, or of 2 MLBS
Chapter 1, the Speaker of the Assembly or the Band Assembly as an entity may submit such
question to the Solicitor General, who shall give a written Opinion thereon, and such Opinion
shall be binding unless annulled in whole or in part, by the Court of Central Jurisdiction, or
amended by the Band Assembly pursuant to the enactment of the law. The Exterior Legal
Counsel of the Band shall, on request, assist the Solicitor General in the proper interpretation of
this or any other Band statute upon official request of the Band Assembly.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 32.
Band Ordinance 38-21.
Cross References
Legal counsel, see 4 MLBS § 16.
§ 32. Construction of Title.
The Solicitor General or the Exterior Legal Counsel and the Court of Central Jurisdiction,
whichever is applicable, shall liberally construe the provisions of this title, or of 2 MLBS
Chapter 1, so as to provide for the full force and effect of the purposes therein stated.
Historical and Statutory Notes
Source:
Band Statute 1141-MLC-2, § 33.
21
TITLE 8 – CHILDREN AND FAMILIES
CHAPTER 12
CHILD SUPPORT
Subchapter
1. General Provisions
2. Paternity
3. Enforcement
Section
2001
2031
2051
SUBCHAPTER 1
GENERAL PROVISIONS
Section
2001. Findings and Purpose.
2002. Sovereign Immunity.
2003. Definitions.
2004. Band Authority.
2005. Judicial Proceedings.
2006. Support Order.
2007. Providing Income Information.
2008. Calculation of Gross Income.
2009. Income from Self-Employment or Operation of a Business.
2010. Social Security or Veterans’ Benefit Payments Received on Behalf of a Child.
2011. Potential Income.
2012. Deduction from Gross Income for Non-Joint Children.
2013. Presumptive Child Support Obligation.
2014. Guideline Used in Child Support Determinations.
2015. Non-Cash Support.
2016. Parenting Expense Adjustment.
2017. Written Findings.
2018. Equitable Distribution of Child Support.
2019. Modification of Orders or Decrees.
2020. Child Care Support.
2021. Medical Support.
2022. Ability to Pay; Self-Support Adjustment.
2023. Deviation from Presumptive Child Support Obligation.
2024. Notice to Band Authority.
22
Historical and Statutory Notes
The Preamble of Ordinance 26-94 provides: “Be it enacted by the Band Assembly of the Mille Lacs Band
of Chippewa Indians for the purpose of establishing Child Support and Enforcement for adequate support
and nurturing of the children under the jurisdiction of the Band.”
The title of Ordinance 06-10 is: “An Ordinance repealing Subchapter I of Chapter 12 (Child Support) in
Title 8 of the Mille Lacs Band Statutes Annotated, and amending this Subchapter in order to ensure that
the children under the jurisdiction of the Mille Lacs Band of Ojibwe are provided with parental support
and the financial means to promote healthy growth development; and to establish a child support
enforcement program within the Band government. This Bill also creates Subchapter II (Paternity) of
Chapter 12 of Title 8 to ensure that the father of every child subject to the jurisdiction of the Band is
identified and paternity established in order to protect, promote and help provide for the child’s best
interest. In addition, this Bill amends Subchapter III (Enforcement) of Chapter 12 of Title 8 to create a
consistent enforcement system of child support collection.”
The Preamble of Ordinance 06-10 provides: “It is enacted by the Band Assembly of the Mille Lacs Band
of Ojibwe for the purpose of repealing Subchapter I of Chapter 12 in Title 8 of the Mille Lacs Band
Statutes Annotated in its entirety to ensure that the children under the jurisdiction of the Mille Lacs Band
of Ojibwe are provided with parental support and the financial means to promote healthy growth
development; and to establish a child support enforcement program within the Band government. This
Bill also creates Subchapter II (Paternity) of Chapter 12 of Title 8 to ensure that the father of every child
subject to the jurisdiction of the Band is identified and paternity established in order to protect, promote
and help provide for the child’s best interest. In addition, this Bill amends Subchapter III (Enforcement)
of Chapter 12 of Title 8 to create a consistent enforcement system of child support collection.”
Cross References
Removal of child from proposed adoptive home, support orders, see 8 MLBS § 617.
§ 2001. Findings and Purpose.
The Band Assembly finds and determines:
(a)
The health and well-being of the Band depends on the healthy growth, development
and well-being of the Band’s children.
(b)
The healthy growth, development and well-being of the Band’s children require that
proper care and support be given to them.
(c)
The healthy growth, development and well-being of the Band’s children are
jeopardized by financial difficulties and hardship facing many Band children due to a
lack of parental support.
(d)
It is a purpose of this chapter and in the best interest of the Band to provide for the
establishment of child support obligations that are consistent with traditional Ojibwe
values and that motivate parents to provide their children with regular and adequate
support in accordance with the parents’ resources and abilities.
23
(e)
It is a purpose of this chapter and in the best interest of the Band to utilize the civil
justice system of the Court of Central Jurisdiction and the Band Authority to
implement and enforce the child support obligations established in accordance with
this chapter.
(f)
This chapter reaffirms Band sovereignty and self-determination by providing for the
exercise of Band jurisdiction over child support and paternity cases involving Band
children and families.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 1.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2001.
Band Ordinance 01-21.
§ 2002. Sovereign Immunity.
Nothing in this chapter shall be construed as a waiver of the sovereign immunity of the Mille
Lacs Band of Ojibwe.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, § 9.
Band Ordinance 06-10, Title I, §1, Exhibit A, § 2002.
§ 2003. Definitions.
For the purposes of this chapter, the following terms shall have the meaning assigned to them in
this section.
(a)
“Apportioned Veterans’ Benefits” means the amount the Veterans Administration
deducts from a veteran’s award and disburses to a child or a child’s representative
payee. The appointment of veteran’s benefits shall be that determined by the Veterans
Administration and governed by the U.S. Code of Federal Regulations (C.F.R.), Title
38, §§ 3.450-3.458.
(b)
“Arrears” are the amounts that accrue pursuant to an obligor’s failure to comply
with a support order. Past support contained in a support order is arrears if the court
order does not contain repayment terms. Arrears also arise by the obligor’s failure to
comply with the terms of a court order for repayment of past support. An obligor’s
failure to comply with the terms for repayment of amounts owed for past support
turns the entire amount owed into arrears.
(c)
“Band” means the Mille Lacs Band of Ojibwe.
24
(d)
“Band Authority” means the Mille Lacs Band Child Support Enforcement Program.
(e)
“Band coverage” means medical, dental, or other health care benefits provided by
the Indian Health Service or the Band’s Circle of Health program.
(f)
“Basic support” means the basic support obligation determined under the child
support guideline in § 2014 of this Title. Basic support includes support for a child’s
housing, food, clothing, transportation, and education costs, and other expenses
relating to the child’s care. Basic support does not include monetary contributions for
a child’s childcare expenses or medical or dental expenses.
(g)
“Bona fide career change” or “aandanokiid awiya,” as used in this chapter, means
an educational pursuit or change of profession that is made in good faith. Any party
claiming a bona fide career change for purposes of calculating child support shall
bear the burden of proof.
(h)
“Child” means a person who is younger than eighteen (18) years old and has not
been emancipated by order of a court of competent jurisdiction, or a person for whom
child support may be ordered pursuant to § 2006 (i).
(i)
“Court” means the Band’s Court of Central Jurisdiction of the Mille Lacs Band of
Ojibwe.
(j)
“Financial Institution” means a savings association, bank, trust company, credit
union, industrial loan and thrift company, bank and trust company, or savings
association, and includes a branch or detached facility of a financial institution.
(k)
“Gross Income” means the income of a parent calculated under § 2008 of this Title.
(l)
“Health care coverage” means medical, dental or other health care benefits that are
provided by one or more health plans. Health care coverage includes fee for service,
health maintenance organization, and other types of private health insurance and
public health care coverage under which medical services are available to the
dependent child(ren).
(m)
“Health plan” means a plan, other than any form of public medical, dental or other
health care assistance, that provides medical, dental, or other health care benefits and
is:
(1)
provided on an individual or group basis;
(2)
provided by an employer or union;
(3)
purchased in the private market; or
25
(4)
available to a person eligible to carry insurance for a joint child, including a
party’s spouse or parent.
(n)
“IV-D case” means a case where a party has applied for child support services from a
public authority or has assigned to a tribe or a state rights to child support because of
the receipt of public assistance under Title IV-D of the Social Security Act, 45 U.S.C.
§ 309.
(o)
“Joint child” means a child of both parents in a support proceeding, whether child
support is sought from one or both parents in the proceeding.
(p)
“Medical support” means providing medical, dental or other health care benefits for
a joint child by carrying health care coverage for the joint child or by contributing to
the cost of health care coverage, public coverage, unreimbursed medical expenses, or
uninsured medical expenses of the joint child.
(q)
“Non-cash support” means support provided in the nature of goods and/or services
rather than in cash, which contributes directly to meeting the needs of a child. Noncash support may include services such as making repairs to an automobile or a
home, the clearing or upkeep of property, providing a means for travel, providing
needed resources for a child’s participation in tribal customs and practices, or other
goods or services that contribute to the needs of a child, and can be reasonably
assigned a cash value.
(r)
“Non-joint child” means a child of one but not both of the parents in a support
proceeding.
(s)
“Obligee” means a person to whom child support payments are owed.
(t)
“Obligor” means a person obligated to pay child support.
(u)
“Parentage proceeding” means the proceeding in which paternity is established
through a contested or uncontested process.
(v)
“Parental Income for determining Child Support (PICS)” means gross income
calculated under §2008 of this Title minus deductions for non-joint children allowed
under §2012 of this Title.
(w)
“Payer of funds” means a person or entity that provides funds to an obligor,
including an employer as defined under 26 U.S.C. § 3401(d), an independent
contractor, a payer of workers’ compensation benefits or unemployment insurance
benefits, a financial institution, or a tribe making per capita payments.
(x)
“Parent” means the lawful mother or father of a child or, where applicable
throughout this statute, a third-party guardian.
26
(y)
“Per capita income” and “per capita payments” mean monthly bonus payments,
minor trust payments to enrolled tribal members authorized by a Tribal Net Revenue
Allocation Plan, or both. Per capita payments do not include economic support
payments, stimulus payments, or any settlement monies.
(z)
“Primary physical custodian” means the parent who provides the primary residence
for a child and is responsible for the majority of the day-to-day decisions concerning
a child.
(aa)
“Public assistance” means temporary financial assistance given to needy persons by
a tribal or state government agency.
(bb)
“Public authority” means a local unit of government acting on behalf of a tribe or a
state that is responsible for child support enforcement and includes but is not limited
to the Band Authority.
(cc)
“Social Security benefit” means the monthly retirement, survivors, or disability
insurance benefits that the Social Security Administration provides to a parent for that
parent’s own benefit or for the benefit of a joint child. Social Security benefits do not
include Supplemental Security Income benefits that the Social Security
Administration provides to a parent for the parent’s own benefit or to a parent due to
the disability of a child.
(dd)
“Support payment”, “support obligation”, “child support payment” or “child
support obligation” means a payment or obligation for basic support, childcare
support, and/or medical support of a child pursuant to a support order.
(ee)
“Support order” means a judgment, decree, or order, whether temporary, final, or
subject to modification, issued by any court (including but not limited to the Band’s
Court) or administrative agency of a competent jurisdiction in a marriage dissolution,
legal separation, annulment, parentage, custody, child support or other proceeding
that establishes or modifies a child support obligation.
(ff)
“Survivors and dependents’ educational assistance” means funds disbursed by the
Veterans Administration under 38 U.S.C. chap. 35 to a child or the child’s
representative payee.
(gg)
“TANF” means Temporary Assistance to Needy Families provided under Title IV-A
of the Social Security Act.
(hh)
“Third-Party Guardian” means a person legally appointed by a parent, spouse, or
court of competent jurisdiction having the duty and authority to provide care and
control of a child.
(ii)
“Title IV-A” refers to Title IV-A of the Social Security Act under which the federal
government provides funds to tribes or states to provide temporary financial
27
assistance to families using federal dollars.
(jj)
“Title IV-D” means Title IV-D of the Social Security Act under which the federal
government provides funds to tribes and states to administer child support programs
that provide services related to child support.
(kk)
“Tribal Court” means a court established by a tribe, including but not limited to the
Band’s Court.
(ll)
“Tribe” or “tribal” mean a state or federally recognized Indian tribe, including but
not limited to the Band.
(mm) “Tribunal” means a tribal or state court, administrative agency, or quasi-judicial
entity authorized to establish, enforce, or modify support orders or to determine
parentage.
(nn)
“Uninsured medical expenses” means a joint child’s reasonable and necessary
medical, dental, or other health-related expenses if the joint child is not covered by a
health plan, Band coverage, or public coverage when the expenses are incurred.
(oo)
“Unreimbursed medical expenses” means a joint child’s reasonable and necessary
medical, dental, or other health-related expenses if the joint child is covered by a
health plan, Band coverage, or public coverage and the plan or coverage does not pay
for the total cost of the expenses when the expenses are incurred. Unreimbursed
medical expenses do not include the cost of premiums. Unreimbursed medical
expenses include, but are not limited to deductibles, co-payments and expenses for
orthodontia, prescription eyeglasses and contact lenses, but not over-the-counter
medications if coverage is under a health plan.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T I, § 4.04.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2003.
Band Ordinance 01-21.
§ 2004. Band Authority.
(a)
There is hereby established the Mille Lacs Band Child Support Enforcement Program
(the Band Authority) within the Band’s Department of Administration.
(b)
The Band Authority is authorized to provide child support enforcement services to all
parents and children subject to the jurisdiction of the Band. The Band Authority is
authorized, among other things, to:
(1)
locate custodial parents and noncustodial parents, as well as their sources of
28
income, assets, and debts;
(c)
(2)
seek a determination of parentage;
(3)
seek the establishment or modification of child support;
(4)
enforce support orders and laws relating to the duty of support;
(5)
make reasonable information requests from state and tribal governments, to
include other Band departments, for the purpose of establishing, modifying,
and enforcing a child support obligation; and
(6)
seek Court orders authorizing holds on Band members’ monthly per capita (or
other bonus) payments to facilitate either a determination of parentage or the
administration of a child support obligation.
In providing child support enforcement services, the Band Authority may provide the
services of an attorney or an attorney’s representative to a party seeking to establish,
modify or enforce a child support obligation.
(1)
The provision of such services shall not create an attorney-client relationship
between the attorney or attorney’s representative and the party to whom such
services are provided. Attorneys and attorney’s representatives employed by
or under contract with the Band Authority have an affirmative duty to inform
applicants for and recipients of services from the Band Authority that no
attorney-client relationship exists or will be formed between the attorney or
attorney’s representative and the applicant for or recipient of such services. In
providing such services, the Band Authority shall be the sole client of the
attorney or attorney’s representative and an attorney-client relationship shall
exist between the attorney or attorney’s representative and the Band
Authority.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2004.
Band Ordinance 01-21.
§ 2005. Judicial Proceedings.
(a)
The Court shall have jurisdiction under this chapter over all parents and children
subject to the jurisdiction of the Band. Except as otherwise provided by Federal law,
such jurisdiction shall include, but not be limited to:
(1)
all persons who are members of or are eligible for membership who reside
within the Band’s geographic limits,
29
(2)
all persons who are alleged to be the parent of a child, including an unborn
child, and whose parenting partner is a member of or is eligible for
membership in the Band or is a member of or eligible for membership in
another tribe and resides within the Band’s geographic limits, and
(3)
all persons who knowingly consent to the jurisdiction of the Band under this
chapter.
(b)
Except as otherwise provided by Federal law, if another federal, state or tribal court
has jurisdiction over any matter provided for in this chapter, the Band Court shall
have concurrent jurisdiction over the same matter.
(c)
An action to establish, modify, or enforce a child support obligation may be filed
separately or may be joined with an action for divorce, annulment, legal separation, or
child custody or guardianship.
(d)
Unless an action to establish, modify, or enforce a child support obligation has been
joined with an action for child custody or guardianship, in establishing, modifying, or
enforcing a child support obligation, the Court shall not change or modify the custody
or guardianship of the child.
(e)
Except as otherwise expressly provided in this chapter, in every action under this
chapter:
(f)
(1)
the Court shall inform the parties to the action that they have the right to have
a lawyer or other person(s) they have selected represent them in the
proceeding at their own expense;
(2)
if it appears that a party to the action cannot afford private counsel, the Court
shall inform the party of available services that might provide counsel at a
reduced fee or pro bono;
(3)
the parties to the action shall have the opportunity to introduce, examine, and
cross-examine witnesses in accordance with the Court’s rules;
(4)
the parties to the action shall have the opportunity to discover, offer, or
inspect evidence in accordance with the Court’s rules; and
(5)
the parties to the action shall have the opportunity to present arguments and
statements in accordance with the Court’s rules.
All judicial proceedings in an action to establish, modify, or enforce a child support
obligation are confidential. In accordance with this provision:
(1)
When providing service by publication in such an action, the names of the
children subject to the action shall not be disclosed. Only the children’s
30
initials shall be used.
(2)
Court files and hearings in such an action will be closed to outside observers.
Only the parties directly involved, necessary witnesses, and Court personnel
shall be present at hearings. The Court may utilize its discretion to permit
other observers, provided that the Court has offered all parties the opportunity
to object.
(3)
Any person, including but not limited to any employee or official of the Band,
who willfully discloses otherwise confidential information related to an action
to establish, modify, or enforce a child support obligation, except as expressly
authorized and provided for by Court order or otherwise pursuant to this
chapter, and who is found guilty of an unauthorized disclosure of information,
may be subject to a civil fine not to exceed Five Hundred Dollars ($500.00).
(g)
Child support proceedings should not be discussed with the children involved or with
other children in the household. Parents are to refrain from using their children as
tools against each other.
(h)
If the Court has knowledge that a protective order exists with respect to a party
involved in a child support proceeding, the Court shall not release any private data
regarding the physical or employment location of the party protected by the protective
order to the party or their representatives against whom the protective order was
established. The Court may utilize its discretion to authorize separate proceedings to
ensure the safety of the protected party while encouraging the utmost participation by
the parties.
(i)
To ensure an equal distribution of child support amongst a supported child or
children, the Court may schedule a hearing to address multiple child support orders
pertaining to the same child or children. The Court may utilize its discretion to
determine how such a hearing will be structured.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 2.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2005.
Band Ordinance 01-21.
Cross References
Disclosure by judge of information relating to pending case, see 5 MLBS § 117.
§ 2006. Support Order.
(a)
General. Incorporation of support order in decree of dissolution, legal separation, or
31
annulment; provision for child support in other proceedings. The Court shall
incorporate in every decree of dissolution, legal separation, or annulment an order
providing for the support of the parties’ children as provided in this chapter. The
Court shall also provide for the support of the parties’ children in any other
proceeding related to custody, parenting time, or support.
(b)
Designation of support and maintenance payments. Every support order
incorporated in a decree of dissolution, legal separation, or annulment shall clearly
designate whether payments ordered are for child support or for maintenance of the
spouse or former spouse.
(1)
If payments are ordered for child support and spousal maintenance, the order
shall clearly state the amount that is for child support and the amount that is
for spousal maintenance.
(2)
An award of payments from future income or earnings of the parent who is the
primary physical custodian of the child or children subject to the order is
presumed to be for spousal maintenance, and an award of payments from the
future income or earnings of the parent who is not the primary physical
custodian of the child or children subject to the order is presumed to be for
child support, unless otherwise designated by the Court.
(c)
Marital misconduct not to affect support obligations. The Court may order either
or both parents owing a duty of support to a child of the marriage to pay an amount
reasonable or necessary for the child’s support, without regard to marital misconduct.
(d)
Stipulations for child support. The Court shall approve a child support stipulation
of the parties if each party is represented by independent counsel or if the Court
makes a finding that the stipulation is fair to both parties and is in the best interest of
the child.
(e)
Percentage payments. The Court may order an obligor to pay child support in the
form of a percentage of the obligor’s net bonuses, commissions, or other forms of
compensation, in addition to, or if the obligor receives no base pay, in lieu of, an
order for a specific dollar amount.
(f)
Lien on property; appointment of trustee. With the exception of property held by
the United States in trust for an obligor, the Court may make any support order a lien
or charge upon the property of the obligor, either at the time of the entry of the order
or by subsequent order upon proper application. In addition, the Court may appoint a
trustee to receive funds or other property awarded as support money. When
appropriate, the Court may name the Band Authority as trustee.
(g)
Payments made to Band Authority or other public authority. In any support
order, the Court may require that child support payments be made to the Band
Authority or other public authority for the benefit of the obligee.
32
(h)
Seasonal income. The Court shall establish the annual child support obligation of an
obligor with a seasonal income so that the obligor makes either the same monthly
payments throughout the year or monthly payments that reflect variations in the
obligor’s income.
(i)
Duration of support payments.
(1)
(j)
Child support payments shall stop when the child is 18 years old unless the
Court finds that:
(i)
it would be in the best interests of the child to continue support
payments until the child is 21 years old; and
(ii)
the child is (i) disabled or (ii) between 18 and 21 years old and
enrolled in high school on a full-time basis.
(2)
If the Court makes such findings, it may order that support payments shall
continue while the child is between 18 and 21 years old, but only for so long
as the child is disabled or enrolled in high school on a full-time basis.
(3)
When a child’s full-time high school enrollment status is in dispute, the Court
shall make the determination.
Notice of address or residence change. Every obligor under a support order shall
notify the obligee and the public authority responsible for collection of support
money, if any, of a change of address or residence within 60 calendar days of the
address or residence change.
(1)
The Court may waive or modify the requirements of this paragraph by order if
necessary to protect the obligee from contact by the obligor.
(k)
Satisfaction of child support obligation. The Court may conclude that an obligor
has satisfied a child support obligation by providing a home, care, and support for the
child while the child was living with the obligor, if the court finds that the child was
integrated into the family of the obligor with the consent of the obligee and child
support payments were not assigned to a public authority or other public agency.
(l)
Other custodians. If a child resides with a person other than a parent and the Court
approves of the physical custody arrangement, the Court may order child support
payments be made to the person having physical custody regardless of whether the
person has legal custody. A duly executed Delegation of Parental Authority, on its
own, does not establish physical custody.
33
(m)
Adjustment to support order. A support order issued under this section may
provide that during any period of time of 30 consecutive days or longer that the child
is residing with the obligor, the amount of support otherwise due under the order may
be reduced.
(n)
Determination of controlling order. In situations in which more than one support
order involving the same obligor and child exists, the obligor, the obligee, or the
public authority responsible for collection of support money, if any, may request that
the Court determine which order is the controlling order. The Court shall presume
that the latest order that involves the same obligor and child is controlling in the
absence of proof to the contrary.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 4.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2006.
Band Ordinance 01-21.
§ 2007. Providing Income Information.
(a)
In any proceeding for dissolution, legal separation, or annulment where the parties
have joint children for whom a support order must be entered under this chapter, or in
any other proceeding in which a support order may be entered under this chapter, the
parties shall serve and file with their initial pleadings or motion documents a financial
affidavit disclosing all sources of income for purposes of calculating gross income
under § 2008 of this Title.
(1)
(b)
The financial affidavit shall include relevant supporting documentation
necessary to calculate gross income and parental income for determining child
support including, but not limited to, pay stubs for the previous three months
and employer statements or statements of receipts and expenses if selfemployed. The supporting documentation shall also include relevant copies of
each parent’s most recent federal tax returns including W-2 forms, 1099
forms, unemployment benefit statements, workers’ compensation statements,
and all other documents evidencing earnings or income as received that
provide verification for the financial affidavit, including verification of per
capita income, if applicable.
In addition to the requirements of § 2007(a), at any time after a proceeding seeking
child support payments has been commenced or when a child support order is in
effect, a party to the proceeding, the obligor or obligee under the support order, or the
Band Authority may request that a party to the proceeding or the obligor or the
obligee under the support order produce a copy of the most recent federal tax returns
filed with the Internal Revenue Service by the person to whom the request is directed.
34
(1)
The person to whom the request is directed shall provide a copy of the tax
returns to the person making the request within 30 calendar days of receipt of
the request unless the request is not made in good faith. A request under this
paragraph may not be made more than once every two years, in the absence of
good cause for more frequent requests.
(c)
If a parent subject to the jurisdiction of the Court does not serve and file the financial
affidavit and supporting documentation with the parent’s initial pleading or motion
documents, the Court shall set income for that parent based on credible evidence
before the Court or in accordance with § 2011 of this Title. The Court may consider
credible evidence from one party that the financial affidavit submitted by the other
party is false or inaccurate.
(d)
If the Court determines that a party does not have access to documents that are
required to be disclosed under this section, the Court may consider the testimony of
that party as credible evidence of that party’s income.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 4.01.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2007.
Band Ordinance 01-21.
§ 2008. Calculation of Gross Income.
(a)
Subject to the exclusions and deductions in this section, gross income includes any
form of periodic payment to a parent including, but not limited to, salaries, wages,
commissions, self-employment income as defined in § 2009 of this Title, workers’
compensation, unemployment benefits, annuity payments, military and naval
retirement, pensions and disability payments, spousal maintenance payments pursuant
to a court order entered in a prior proceeding or in the current proceeding, Social
Security and veterans benefits, including Social Security and veterans benefits
provided for a joint child to the extent specified in § 2010 of this Title, potential
income as defined in § 2011 of this Title, and per capita payments authorized by a
Tribal Net Revenue Allocation Plan.
(1)
Salaries, wages, commissions, or other compensation paid to a parent by third
parties shall be included in gross income notwithstanding the parent’s
participation in an employer-sponsored benefit plan that allows the parent to
pay for a benefit or expense using pretax dollars, such as flexible spending
plans and health savings accounts.
(2)
Pension deductions not exceeding ten percent of gross wages shall not be
included in gross income.
35
(b)
A parent’s gross income does not include compensation received by the parent for
employment in excess of a 40-hour week, provided that:
(1)
Child support is ordered in an amount at least equal to the presumptive child
support obligation calculated under § 2013 of this Title based on gross income
not excluded under this clause; and
(2)
The parent demonstrates and the Court finds that:
(i)
The excess employment began after the filing of the petition for
dissolution, legal separation, or annulment or a petition related to
custody, parenting time, or support;
(ii)
The excess employment reflects an increase in the work schedule or
hours worked over that of the two years immediately preceding the
filing of the petition;
(iii)
The excess employment is voluntary and not a condition of
employment;
(iv)
The excess employment is in the nature of additional, part-time or
overtime employment compensable by the hour or fraction of the hour;
and
(v)
The parent’s compensation structure has not been changed for the
purpose of affecting the parent’s child support obligation.
(c)
Expense reimbursements or in-kind payments received by a parent in the course of
employment, self-employment, or operation of a business shall be included in the
parent’s gross income if they reduce the parent’s personal living expenses.
(d)
A parent’s gross income may be calculated either on an annual or monthly basis.
Weekly income shall be translated to monthly income by multiplying weekly income
by 4.33.
(e)
A parent’s gross income does not include child support payments received by the
parent.
(f)
It is a rebuttable presumption that adoption assistance payments, guardianship
assistance payments, and foster care subsidies are not gross income. This presumption
may be rebutted if such payments are used for the recipient’s personal living or other
expenses unrelated to the adoption, guardianship, or foster care.
(g)
A parent’s gross income does not include the income of the parent’s spouse.
(h)
Child support or spousal maintenance payments ordered by a court for a non-joint
36
child or former spouse or ordered payable as part of the current proceeding shall be
deducted from other periodic payments received by the parent making such payments
for purposes of determining that parent’s gross income.
(i)
A parent’s gross income does not include public assistance benefits received under
the TANF program, the Minnesota Family Investment Program, or other programs of
public assistance based on need.
(j)
A parent’s gross income does not include grants and/or scholarships for postsecondary education.
(k)
For purposes of calculating gross income of a third-party guardian or other custodial
party who is not a biological parent, the Court shall not utilize the third-party
guardian’s income.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 4.03.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2008.
Band Ordinance 01-21.
§ 2009. Income from Self-Employment or Operation of a Business.
(a)
For purposes of this chapter, a parent’s income from self-employment or operation of
a business, including joint ownership of a partnership or closely held corporation, is
defined as the parent’s share of gross receipts minus the costs of goods sold minus
ordinary and necessary expenses required for self-employment or business operation.
(b)
The following items shall be excluded from ordinary and necessary expenses in
calculating a parent’s income from self-employment or operation of a business:
amounts allowable by the Internal Revenue Service for the accelerated component of
depreciation expenses; investment tax credits; and any other business expenses
determined by the Court to be inappropriate or excessive for determining gross
income for purposes of calculating child support.
(1)
If challenged, the parent seeking to deduct an expense, including depreciation,
has the burden of proving that the expense is ordinary and necessary.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I., § 4.02.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2009.
37
§ 2010. Social Security or Veterans’ Benefit Payments Received on Behalf of a Child.
(a)
The amount of the monthly Social Security benefits or apportioned veterans’ benefits
provided for a joint child shall be included in the gross income of the parent on whose
eligibility the benefits are based.
(b)
The amount of the monthly survivors’ and dependents’ educational assistance
provided for a joint child shall be included in the gross income of the parent on whose
eligibility the benefits are based.
(c)
If Social Security or apportioned veterans’ benefits are provided for a joint child
based on the eligibility of the obligor, and are received by the obligee as a
representative payee for the child or by the child attending school, then the amount of
the benefits shall be subtracted from the obligor’s presumptive child support
obligation as calculated under § 2013 of this Title.
(d)
If the survivors’ and dependents’ educational assistance is provided for a joint child
based on the eligibility of the obligor, and is received by the obligee as a
representative payee for the child or by the child attending school, then the amount of
the assistance shall also be subtracted from the obligor’s presumptive child support
obligation as calculated under § 2013 of this Title.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 5.01.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2010.
§ 2011. Potential Income.
(a)
General. This section applies to child support orders including orders for past
support. If a parent is voluntarily unemployed, underemployed, or employed on a less
than full-time basis, or there is no direct evidence of any income, child support must
be calculated based on a determination of potential income.
(1)
(b)
For purposes of this determination, it is a rebuttable presumption that a parent
can be gainfully employed on a full-time basis. As used in this section, “full
time” means 40 hours of work in a week except in those industries, trades, or
professions in which most employers, due to custom practice, or agreement
use a normal work week of more or less than 40 hours in a week.
Methods. Determination of a parent’s potential income must be made according to
one of the following two methods, as appropriate:
(1)
the parent’s probable earnings level based on employment potential, recent
work history, and occupational qualifications in light of prevailing job
38
opportunities and earnings level in the community; or
(2)
(c)
if the parent is receiving unemployment compensation or workers’
compensation, the parent’s income may be calculated using the actual amount
of the unemployment compensation or workers’ compensation benefit
received.
Parent not considered voluntarily unemployed, underemployed, or employed on
a less than full-time basis. A parent is not considered voluntarily unemployed,
underemployed, or employed on a less than full-time basis upon a showing by the
parent that:
(1)
the unemployment, underemployment, or employment on a less than full-time
basis is temporary and will ultimately lead to an increase in income;
(2)
the unemployment, underemployment, or employment on a less than full-time
basis represents a bona fide career change that outweighs the adverse effect of
the parent’s diminished income on the child; or
(3)
the unemployment, or underemployment, or employment on a less than fulltime basis is because the parent is physically or mentally incapacitated or
incarcerated, except where the reason for incarceration is the parent’s
nonpayment of support.
(d)
TANF Recipient. If the parent of a joint child is a recipient of a TANF cash grant, no
potential income is to be imputed to the parent.
(e)
Caretaker. If a parent stays at home to care for a child who is subject to the child
support order, the Court shall consider the following factors when determining
whether the parent is voluntarily unemployed, underemployed, or employed on a less
than full-time basis:
(1)
parenting and child care arrangements before the child support action;
(2)
the stay-at-home parent’s employment history, recent employment earnings,
and the availability of jobs within the community for an individual with that
parent’s qualifications;
(3)
the relationship between the employment-related expenses including, but not
limited to, child care and transportation costs required for the parent to be
employed, and the income the stay-at-home parent could receive from
available jobs within the community for an individual with that parent’s
qualifications;
(4)
the child’s age and health including whether the child is physically or
mentally disabled; and
39
(5)
the availability of child care providers.
This paragraph does not apply if the parent stays at home only to care for non-joint
children.
(f)
Economic Conditions. A self-employed parent is not considered to be voluntarily
unemployed, underemployed, or employed on a less than full-time basis if that parent
can show that the parent’s net self-employment income is lower because of economic
conditions that are directly related to the source or sources of that parent’s income.
(g)
Per Capita Income. If income is imputed to an obligor and the obligor received per
capita income, the Court shall not include the per capita income as part of the
obligor’s gross income. This provision shall not prevent the Band Authority from
intercepting per capita income in order to enforce any child support order.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, §§ 5.02 to 5.04.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2011.
Band Ordinance 01-21.
§ 2012. Deduction from Gross Income for Non-Joint Children.
(a)
When a parent is legally responsible for a non-joint child or children, a deduction
from that parent’s gross income shall be calculated under this section if:
(1)
the non-joint child or children primarily resides in that parent’s household;
and
(2)
that parent is not obligated to pay basic child support for the non-joint child or
children to the other parent or a legal custodian of the non-joint child or
children under an existing order.
(b)
The Court shall use the guideline under § 2014 of this Title to determine the basic
child support obligation for the non-joint child or children by using the gross income
of the parent for whom the deduction is being calculated. If the number of non-joint
children to be used for the determination is greater than two, the determination must
be made using the number two instead of the greater number.
(c)
The deduction from gross income for a non-joint child or children is 50 percent of the
guideline amount determined under § 2012(b).
40
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 5.02.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2012.
§ 2013. Presumptive Child Support Obligation.
(a)
To determine the presumptive child support obligation of a parent, the Court shall
follow the procedure set forth in this section.
(b)
To determine the obligor’s basic support obligation, the Court shall:
(1)
determine the gross income of each parent under § 2008 of this Title;
(2)
calculate the parental income for determining child support (PICS) of each
parent by subtracting from gross income the deduction, if any, for each
parent’s non-joint children under § 2012 of this Title;
(3)
determine the percentage contribution of each parent to the combined PICS by
dividing the combined PICS into each parent’s PICS;
(4)
determine the combined basic support obligation by application of the
guideline in § 2014 of this Title;
(5)
determine the obligor’s share of the basic support obligation by multiplying
the percentage figure from § 2013(b)(3) by the combined basic support
obligation from § 2014(b)(4); and
(6)
determine the parenting expense adjustment, if any, as provided in § 2016 of
this Title and adjust the obligor’s basic support obligation accordingly. If the
parenting time of the parties is presumed equal, § 2016 (c) of this Title applies
to the calculation of the basic support obligation and the determination of
which parent is the obligor.
(c)
The Court shall determine the obligor’s child care support obligation as provided in §
2020 of this Title.
(d)
The Court shall determine each parent’s medical support obligation as provided in §
2021 of this Title. Unreimbursed and uninsured medical expenses are not included in
the presumptive amount of support owed by a parent and are calculated and collected
as described in § 2021 of this Title.
(e)
Subject to the provisions of § 2013(f), the Court shall determine each parent’s total
presumptive child support obligation by adding together each parent’s basic support,
child care support, and medical support obligations as provided in this section.
41
(f)
If Social Security benefits or veterans’ benefits are received by one parent as a
representative payee for a joint child based on the other parent’s eligibility, the other
parent’s presumptive child support obligation shall be reduced by the amount of such
benefits in accordance with § 2010 of this Title.
(g)
A parent’s actual child support obligation may be different than the parent’s
presumptive child support obligation under the circumstances described in § 2006 (d)
of this Title, if the provisions in § 2022 of this Title are applicable, or as a result of
the Court’s consideration of the factors identified in § 2023 of this Title.
(h)
A final child support order shall separately designate the amount owed for basic
support, child care support, and medical support.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 5.06.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2013.
§ 2014. Guideline Used in Child Support Determinations.
(a)
(b)
Use of guideline.
(1)
The guideline in this section establishes a rebuttable presumption of the
appropriate level of basic support for a joint child and shall be used in any
judicial or administrative proceeding to establish or modify a support
obligation under this chapter. The actual level of basic support for a joint child
may deviate from the guideline level in accordance with other provisions of
this chapter.
(2)
The presumptive basic support obligation for a joint child shall be determined
by referencing the guideline for the appropriate number of joint children and
the combined parental income for determining child support of the parents.
(3)
If a joint child is not in the custody of either parent and a support order is
sought against one or both parents, the basic support obligation shall be
determined separately for each parent against whom a support order is sought
by referencing the guideline for the appropriate number of joint children and
that parent’s individual parental income for determining child support, not the
combined parental incomes for determining child support of both parents.
Basic support; guideline. Unless otherwise agreed to by the parents and approved by
the Court when establishing basic support, the Court must order that basic support be
divided between the parents based on their proportionate share of the parents’
combined monthly parental income for determining child support (PICS). The
presumptive level of basic support must be computed in accordance with MINN. STAT.
42
§ 518A.35, or other Minnesota child support statute, subject to any contrary Mille
Lacs Band law.
(c)
More than six children. If a child support proceeding involves more than six
children, the Court may derive a support order without specifically following
§ 2014(b). However, the Court must consider the basic principles encompassed by the
guideline and both parents’ needs, resources, and circumstances.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 5.07.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2014.
Band Ordinance 01-21.
§ 2015. Non-Cash Support.
An obligor’s provision of non-cash support may satisfy up to 50 percent of the obligor’s child
support obligation, but only under the following circumstances:
(a)
The obligor and obligee agree to the type of non-cash support that will be provided
and the extent to which it will satisfy the obligor’s child support obligation;
(b)
The Court approves the provision of non-cash support in a written order that:
(1)
states the specific dollar amount of the obligor’s total child support obligation;
(2)
describes the type(s) of non-cash support that will be provided;
(3)
states that no more than 50% of the obligor’s total child support obligation
may be satisfied by the provision of such non-cash support; and
(4)
provides that the non-cash support shall not satisfy any portion of the
obligor’s child support obligation that has been or in the future is assigned to a
public authority or other public agency.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2015.
§ 2016. Parenting Expense Adjustment.
(a)
General. The parenting expense adjustment under this section reflects the
presumption that while exercising parenting time, a parent is responsible for and
43
incurs cost of caring for the child, including, but not limited to, costs of food,
transportation, recreation, and household expenses.
(1)
Every child support order shall specify that the percentage of parenting time
means the percentage of time a child is scheduled to spend with the parent
during a calendar year according to a court order. Parenting time includes time
with the child whether it is designated as visitation, physical custody, or
parenting time or is otherwise designated. The percentage of parenting time
may be determined by calculating the number of overnights that a child
spends with a parent, or by using a method other than overnights if the parent
has significant time periods or separate days where the child is in the parent’s
physical custody and under the direct care of the parent but does not stay
overnight. The Court may consider the age of the child in determining
whether a child is with a parent for a significant period of time.
(2)
If there is no court order awarding parenting time, the Court shall determine
the child support award without consideration of the parenting expense
adjustment.
If a parenting time order is subsequently issued or is issued in the same
proceeding, then the child support order shall include application of the
parenting expense adjustment.
(b)
Calculation of parenting expense adjustment. The obligor is entitled to a parenting
expense adjustment calculated as provided in this paragraph. The Court shall:
(1)
find the adjustment percentage corresponding to the percentage of parenting
time allowed to the obligor as follows:
Percentage Range of Parenting Time
Less than 10 percent
10 percent to 45 percent
45.1 percent to 50 percent
(c)
Adjustment Percentage
No adjustment
12 percent
Presume parenting time is equal
(2)
multiply the adjustment percentage by the obligor’s basic child support
obligation to arrive at the parenting expense adjustment; and
(3)
subtract the parenting expense adjustment from the obligor’s basic child
support obligation. The result is the obligor’s basic support obligation after the
parenting expense adjustment.
Calculation of basic support when parenting time is presumed equal.
(1)
If the parenting time is presumed equal under § 2016(b) and the parental
incomes for determining child support of the parents also are equal, no basic
support shall be required unless the Court determines that the expenses for the
44
child are not equally shared.
(2)
If the parenting time is equal but the parents’ incomes for determining child
support are not equal, the parent having the greater parental income for
determining child support shall be obligated for basic support calculated as
follows:
(i)
Multiply the combined basic support calculated under § 2014 of this
Title by 0.75;
(ii)
Prorate the amount under § 2016(c)(2)(i) between the parents based on
each parent’s proportionate share of the combined PICS; and
(iii)
Subtract the lower amount from the higher amount. The resulting
figure is the basic support obligation after the parenting expense
adjustment for the parent with the greater parental income for
determining child support.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 6.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2016.
§ 2017. Written Findings.
(a)
(b)
No deviation. If the Court does not deviate from the presumptive child support
obligation under § 2013 of this Title, the Court must make written findings that state:
(1)
Each parent’s gross income;
(2)
Each parent’s PICS; and
(3)
Any other significant evidentiary factors affecting the child support
determination.
Deviation. If the Court deviates from the presumptive child support obligation under
§ 2013 of this Title, the Court must make written findings that state:
(1)
Each parent’s gross income;
(2)
Each parent’s PICS;
(3)
The amount of the presumptive child support obligation calculated under §
2013 of this Title;
45
(c)
(4)
The reasons for the deviation; and
(5)
How the deviation serves the best interests of the child.
Written findings required in every case. The provisions of this section apply
whether or not the parties are each represented by independent counsel and have
entered into a written agreement. The Court must review any stipulations presented to
it for conformity with § 2013 of this Title. The Court is not required to conduct a
hearing, but the parties must provide sufficient documentation to verify the child
support determination and to justify any deviation.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 6.91.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2017.
§ 2018. Equitable Distribution of Child Support.
Where practical, the Court should seek to establish child support orders that equally apportion
child support to all of the children of an obligor.
(a)
One Order. Where multiple joint children are supported by one child support order,
the Court may order support on a per-child basis.
(b)
Multiple Orders. Where an obligor owes child support to separate obligees, the
Court may equitably apportion child support by determining the maximum child
support amount that the obligor is able to pay and thereafter ensuring that each child
is supported equally to the maximum extent possible.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, § 5.071.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2018.
Band Ordinance 01-21.
§ 2019. Modification of Orders or Decrees.
(a)
Authority. After entry of a temporary or permanent support order under this
subchapter, on motion of either of the parents, a copy of which must be served on a
public authority of payments are made through it, or on motion of a public authority,
the Court may, from time to time, modify any term or condition of the order or make
a new order respecting any matter which it might have made in the original
proceeding, to the extent and under the circumstances described in this section.
46
(1)
(b)
A parent or a public authority may also bring a motion for contempt of court if
the obligor is in arrears in support payments.
Modification.
(1)
The terms of an existing support order may be modified or a new order may
be made upon a showing that there has been a substantial change in
circumstances from those prevailing when the existing order was entered and
that one or more of the terms of the existing order is unreasonable and unfair
under the new circumstances.
(2)
Any one or more of the following facts is sufficient to establish that there has
been a substantial change in circumstances from those prevailing when the
existing order was entered:
(3)
(i)
substantially increased or decreased gross income of an obligor or
obligee;
(ii)
substantially increased or decreased need of an obligor or obligee of
the child or children that are subject to the proceedings;
(iii)
receipt of assistance under the TANF program;
(iv)
a change in the cost of living for either party as measured by the
Federal Bureau of Labor Statistics;
(v)
extraordinary medical expenses of the child not provided for under §
2021 of this Title;
(vi)
a change in the availability of appropriate health care coverage or a
substantial increase or decrease in health care coverage costs;
(vii)
the addition of work-related or education-related child care expenses
of the obligee or a substantial increase or decrease in existing workrelated or education-related child care expenses; or
(viii)
the emancipation of the child.
Any one or more of the following facts is sufficient to create a rebuttable
presumption that the terms of the existing support order are unreasonable and
unfair under the new circumstances:
(i)
the application of the child support guideline in § 2014 of this Title to
the current circumstances of the parties results in a calculated basic
support obligation that is at least 20 percent and at least $75.00 per
month higher or lower than that provided in the existing support order
47
or, if the basic support obligation under the existing support order is
less than $75.00, it results in a calculated basic support obligation that
is at least 20 percent higher or lower;
(ii)
the medical support provisions of the order established under § 2021
of this Title are not enforceable by a public authority or the obligee;
(iii)
health coverage ordered under § 2021 of this Title is not available to
the child for whom the order is established by the parent ordered to
provide such coverage;
(iv)
the existing support obligation is in the form of a statement of
percentage and not a specific dollar amount;
(v)
the gross income of an obligor or obligee has decreased by 20 percent
through no fault or choice of the party; or
(vi)
a deviation from the child support guideline was granted based on the
factor identified in § 2023 (a)(4) of this Title and the child no longer
resides in a foreign country or the factor is otherwise no longer
applicable.
(4)
By itself, the fact that an obligor or obligee has become responsible for the
support of an additional non-joint child since the entry of an existing support
order is not a substantial change in circumstances from those prevailing when
the existing order was entered and does not create a rebuttable presumption
that the terms of the existing order are unreasonable and unfair. However, §
2012 of this Title shall be considered if there are other grounds which allow a
modification of the existing order.
(5)
If an obligor is receiving per capita income, incarceration and corresponding
inability to earn an income shall not serve as a basis for modification of a
child support order.
(6)
On a motion for modification of support, the Court:
(i)
shall apply §§ 2013 and 2014 of this Title, and shall not consider the
financial circumstances of either parent’s spouse, if any; and
(ii)
shall not consider compensation received by a parent for employment
in excess of a 40-hour week if the parent demonstrates, and the Court
finds, that:
(A)
the excess employment began after entry of the existing
support order;
48
(B)
the excess employment is voluntary and not a condition of
employment;
(C)
the excess employment is in the nature of additional, part-time
employment, or overtime employment compensable by the
hour or fractions of an hour;
(D)
the parent’s compensation structure has not been changed for
the purpose of affecting a support obligation; and
(E)
in the case of an obligor, existing child support payments are at
least equal to the presumptive child support obligation
calculated under § 2013 of this Title based on income not
excluded under this subparagraph;
provided that, in the case of an obligor who is in arrears in child support
payments to the obligee, any net income from excess employment must be
used to pay the arrearages until the arrearages are paid in full.
(7)
A modification of support may be made retroactive only with respect to any
period during which the petitioning party has pending a motion for
modification but only from the date of service of notice of the motion on the
responding party and on the Band Authority or other public authority if public
assistance is being furnished.
(8)
Subject to the requirements of § 2017 of this Title, the Court need not hold an
evidentiary hearing on a motion for modification of support if both parents
agree to modify the child support award and submit an Agreed Order to the
Court for approval.
(9)
An enactment, amendment, or repeal of law does not constitute a substantial
change in the circumstances for purposes of modifying a child support order
except as expressly provided in such enactment, amendment, or repeal.
(10)
In the event that a single obligor owes child support to separate obligees, the
Band Authority may move the Court to simultaneously modify all of the
obligor’s child support orders within the Court’s jurisdiction in order to
equally distribute the support amount amongst all of the children.
(c)
Child Support on Death of Obligor. Unless otherwise agreed in writing or expressly
provided in a support order, provisions for the support of a child are not terminated by
the death of a parent obligated to support the child. When a parent obligated to pay
support dies, the amount of support may be modified, revoked, or commuted to a
lump-sum payment, to the extent just and appropriate under the circumstances.
(d)
Child Support on Death of Obligee. When a custodial party receiving arrears
49
payments becomes deceased, the Court shall make a determination as to whether the
arrears should be expunged or whether the payments should continue and the Band
Authority should be appointed as a trustee to disburse ongoing arrears payments to
the child(ren), regardless of whether the child(ren) have reached the age of majority.
(e)
(1)
If children receiving arrears payments have reached the age of majority, the
children may become a party to the child support matter and may motion the
Court for forgiveness of the obligor’s arrears.
(2)
If the Band Authority is appointed as a trustee, the Court may require regular
reports on how the arrears payments have been disbursed.
Automatic Termination of Support.
(1)
Unless a support order provides otherwise, a child support obligation that
specifies a specific amount for a specific child terminates with respect to that
child automatically and without any action by the obligor to reduce, modify,
or terminate the order when the requirements of § 2006(i) of this Title have
been met.
(2)
Unless a support order provides otherwise, a child support obligation for two
or more children that is not based on and does not otherwise specify a specific
amount for each child continues in the full amount until all of the children for
whose benefit the order was made are 18 years old unless modified by the
Court. The obligor may request modification of the child support obligation
under such an order when one or more of the children become 18 years old.
Upon such request, the Court shall determine the new child support obligation
under all applicable provisions of this subchapter on the basis of the income of
the parties at the time the modification is sought.
(f)
Form. The Band Authority shall prepare and make available to Court administrators,
obligors, and persons to whom child support is owed a form to be submitted by the
obligor or the person to whom child support is owed in support of a motion for
modification of an order for support or for contempt of court.
(g)
Child Care Exception. Child care support must be based on actual child care
expenses. The Court may provide that a decrease in the amount of child care support
based on a decrease in actual child care expenses is effective as of the date the
expense is decreased.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. I, §§ 5.05, 5.08, Title II, §§ 1, 2.05.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2019.
Band Ordinance 01-21.
50
§ 2020. Child Care Support.
(a)
(b)
Child Care Costs. Unless otherwise agreed by the parents and approved by the
Court, the Court must order that work-related or education-related child care costs of
joint children be divided between the obligor and obligee based on their proportionate
share of the parents’ combined monthly PICS.
(1)
The amount of work-related or education-related child care costs required by
this section to be divided between the obligor and obligee is the total amount
received by the child care provider from the obligee and any public agency for
the joint child or children.
(2)
Child care costs shall be adjusted by the amount of the estimated federal and
state child care credit payable on behalf of the joint child.
Determining Costs.
(1)
The Court must require verification of employment or school attendance and
documentation of child care expenses from the obligee and the public
authority, if applicable.
(2)
If child care expenses fluctuate during the year because of the obligee’s
seasonable employment or school attendance, or because the obligor has
extended periods of parenting time with the child or children, the Court must
determine child care expenses based on an average monthly cost.
(3)
The amount allocated for child care expenses is considered child support but
is not subject to a cost of living adjustment under § 2019 of this Title.
(4)
The Court may allow the additional parenting time to a parent with whom a
joint child does not reside to care for the joint child while the parent with
whom the joint child does reside is working or attending school, if the Court
determines this arrangement is reasonable and in the best interests of the child.
In making this determination, the Court shall consider:
(i)
the ability of the parents to cooperate;
(ii)
methods for resolving disputes regarding the care of the child, and the
parents’ willingness to use those methods; and
(iii)
whether domestic abuse has occurred between the parties.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, Title II, § 2.04.
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2020.
51
§ 2021. Medical Support.
(a)
(b)
Medical support order.
(1)
A completed national medical support notice issued by the Band Authority or
a Court order that complies with this section is a qualified medical child
support order under the Federal Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. § 1169(a).
(2)
Every order addressing child support must state:
(i)
The names, last-known addresses, and Social Security numbers of the
parents and the joint child that is subject of the order unless the Court
prohibits the inclusion of an address or Social Security number and
orders the parents to provide the address and Social Security number
to the administrator of the health plan providing health care benefits
for the joint child.
(ii)
If a joint child does not presently have appropriate health care
coverage, whether appropriate health care for the joint child is
available and, if so:
(A)
The parents’ responsibilities for carrying health care coverage;
(B)
The cost of premiums and how the cost is allocated between
the parents; and
(C)
The circumstances, if any, under which an obligation to
provide health care coverage for the joint child will shift from
one parent to the other.
(iii)
If appropriate health care coverage is not available for the joint child,
whether a contribution for medical support is required; and
(iv)
How unreimbursed or uninsured medical expenses will be allocated
between the parents.
Determining appropriate health care coverage. In determining whether a parent
has appropriate health care coverage for a joint child, the Court must consider the
following factors:
(1)
Comprehensiveness of health care coverage providing medical and dental
benefits, as well as benefits pertaining to the child’s vision.
(i)
Dependent health care coverage providing medical benefits is
presumed comprehensive if it includes medical, dental, and hospital
52
coverage and provides for preventive, emergency, acute, and chronic
care.
(ii)
(2)
Accessibility.
(i)
(c)
If both parents have dependent health care coverage providing medical
and dental benefits that is presumed comprehensive under this
subparagraph, the Court must determine which parent’s coverage is
more comprehensive by considering what other benefits are included
in the coverage.
Dependent health care coverage is accessible if the covered joint child
can obtain services from a health plan provider with reasonable effort
by the parent with whom the joint child resides. Health care coverage
is presumed accessible if:
(A)
Primary care is available within 30 miles of the joint child’s
residence and specialty care is available within 60 miles of the
joint child’s residence;
(B)
The health care coverage is available through an employer and
the employee can be expected to remain employed for a
reasonable amount of time; and
(C)
No pre-existing conditions exist to unduly delay enrollment in
health care coverage.
(3)
The joint child’s special medical needs.
(4)
Affordability.
(i)
Dependent health care coverage is affordable if it is reasonable in cost.
(ii)
If both parents have dependent health care coverage available for a
joint child that is comparable with regard to comprehensiveness of
medical and dental benefits, accessibility, and the joint child’s special
needs, the least costly health care coverage is presumed to be the most
appropriate health care coverage for the joint child.
Ordering Health Care Coverage.
(1)
If a joint child is presently enrolled in a health care plan or plans providing
medical and dental benefits, the Court must order that the parent who
currently has the joint child enrolled continue that enrollment unless the
parents agree otherwise or a parent requests a change in health care coverage
and the Court determines that other health care coverage is more appropriate.
53
(2)
If a joint child is not presently enrolled in a health care plan or plans providing
medical and dental benefits, upon motion of a parent or the Band Authority,
the Court must determine whether appropriate health care coverage providing
medical and dental benefits for the joint child is available to one or both
parents.
(3)
If appropriate health care coverage providing medical and dental benefits to
the joint child is only available to one parent, the Court must order that parent
to carry the coverage for the joint child.
(4)
If appropriate health care coverage providing medical and dental benefits to
the joint child is available to both parents, the Court must order the parent
with whom the joint child resides to carry the coverage for the joint child,
unless:
(i)
A parent expresses a preference for health care coverage providing
medical and dental benefits to the joint child that is available to the
parent with whom the joint child does not reside;
(ii)
The parent with whom the joint child does reside is already carrying
dependent health care coverage providing medical and dental benefits
for other children and the cost of contributing to the premiums of the
other parent’s coverage would cause the parent with whom the joint
child does not reside extreme hardship; or
(iii)
The parents agree as to which parent will carry health care coverage
providing medical and dental benefits to the joint child and agree on
the allocation of costs.
(5)
If the exception in § 2021(c)(4)(i) or (ii) applies, the Court must determine to
which parent the most appropriate health care coverage providing medical and
dental benefits to the joint child is available and order that parent to carry
health care coverage for the joint child.
(6)
If appropriate health care coverage providing medical and dental benefits to
the joint child is not available to either parent, the Court must order the
parents to contribute toward the actual health care costs of the joint child
based on a pro rata share, unless § 2021(c)(7) shall apply.
(7)
If the joint child is receiving any form of public coverage, the parent with
whom the joint child does not reside shall contribute a monthly amount
toward the actual cost of public coverage.
(i)
The amount of the noncustodial parent’s contribution is determined by
applying the noncustodial parent’s PICS to the premium schedule for
public coverage. If the noncustodial parent’s PICS meets the eligibility
54
requirements for public coverage, the contribution is the amount of the
premium for the highest eligible income on the appropriate premium
schedule for public coverage. For purposes of determining the
premium amount, the noncustodial parent’s household size is equal to
one parent plus the number of children who are the subject of the child
support order.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2021.
Band Ordinance 01-21.
§ 2022. Ability to Pay; Self-Support Adjustment.
(a)
Ability to pay.
(1)
It is a rebuttable presumption that a child support obligation should not exceed
the obligor’s ability to pay. To determine the amount of child support the
obligor has the ability to pay, the Court shall follow the procedure set out in
this section.
(2)
The obligor’s income available for support is the obligor’s monthly gross
income minus a monthly self-support reserve equal to 120 percent of the
federal poverty guidelines for one person. If the obligor’s income available for
support is equal to or greater than the obligor’s child support obligation
calculated under §§ 2013 and 2023 of this Title, the Court shall order child
support under §§ 2013 and 2023.
(3)
If the obligor’s income available for support is more than the minimum
support amount under § 2022(b), but less than the amount calculated under §§
2013 and 2023 of this Title, the Court shall reduce the child support obligation
calculated under § 2013 in the following order, until the child support
obligation is equal to the obligor’s income available for support:
(4)
(i)
Medical support obligations;
(ii)
Child care support obligation; and
(iii)
Basic support obligation.
If the obligor’s income available for support is equal to or less than the
minimum support amount under § 2022 (b) or if the obligor’s gross income is
less than 120 percent of the federal poverty guidelines for one person, the
Court shall order child support in the minimum support amount under §
2022(b).
55
(b)
(5)
If the obligor receives no income and completely lacks the ability to earn
income, the Court shall not order child support.
(6)
This section does not apply to an obligor who is incarcerated. The Court shall
not reduce the child support obligation of an obligor who is incarcerated under
this section.
Minimum support amount.
(1)
(2)
The minimum support amount is:
(i)
For one or two children, $50 per month;
(ii)
For three or four children, $75 per month; and
(iii)
For five or more children, $100 per month.
If the Court orders the obligor to pay the minimum support amount under this
paragraph, the obligor is presumed unable to pay child care support and
medical support.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2022.
§ 2023. Deviation from Presumptive Child Support Obligation.
(a)
General factors. The Court must take into account the factors listed in this section in
establishing or modifying a child support obligation. These factors are in addition to
the child support guideline in § 2014 of this Title and the other factors used to
calculate the presumptive child support obligation under § 2013 of this Title. On the
basis of the factors listed in this section, the Court may deviate upward or downward
from the presumptive child support obligation. The Court may deviate from the
presumptive child support obligation in order to encourage prompt and regular
payment of child support, to prevent either parent or the joint child or children from
living in poverty, or for other purposes. Among the factors to be considered are the
following:
(1)
All earnings, income, circumstances, and resources of each parent, including
real and personal property, but excluding income from excess employment of
the obligor or obligee that meets the criteria of § 2008 (b) of this Title;
(2)
The extraordinary financial needs and resources, physical and emotional
conditions, and educational needs of the child to be supported;
56
(b)
(3)
The standard of living the child would enjoy if the parents were currently
living together, but recognizing that the parents now have separate
households;
(4)
Whether the child resides in a foreign country or more than one year that has a
substantially higher or lower cost of living than this country;
(5)
Which parent is entitled to claim the child as a dependent for income tax
purposes and the financial benefit that parent receives from claiming the child
as a dependent;
(6)
The parents’ debts as provided in §2023(b);
(7)
The obligor affirmatively demonstrates having made significant contributions
toward the support of the child that have not otherwise been quantified or
considered; and
(8)
Whether the obligor’s total payments for court-ordered child support exceed
the limitations set forth in 24 MLBS §3353.
Debt owed to private creditors.
(1)
In establishing or modifying a support obligation, the Court may consider
debts owed to private creditors, but only if:
(i)
The right to support has not been assigned;
(ii)
The Court determines that the debt was reasonably incurred for
necessary support of the child or parent or for the necessary generation
of income.
(A)
(iii)
If the debt was incurred for the necessary generation of
income, the Court may consider only the amount of debt that is
essential to the continuing generation of income; and
The parent requesting a deviation from the presumptive child support
obligation produces a sworn schedule of the debts, with supporting
documentation, showing goods or services purchased, the recipient of
them, the original debt amount, the outstanding balance, the monthly
payment, and the number of months until the debt will be fully paid.
(2)
A schedule prepared under§ 2023(b)(1)(iii) must contain a statement that the
debt will be fully paid after the number of months shown in the schedule,
barring emergencies beyond the parent’s control.
(3)
Any deviation below the presumptive child support obligation that is based on
57
a consideration of debts owed to private creditors must not exceed 18 months
in duration. After 18 months the support obligation must increase
automatically to the level determined by the Court without consideration of
such debts. In addition, the Court may order one or more step increases in the
support obligation during the 18-month period to reflect debt retirement.
(4)
If payment of debt is ordered pursuant to this section, the payment must be
ordered to be in the nature of child support.
(c)
Evidence. The Court may receive evidence on the factors in this section to determine
if the presumptive child support obligation should be modified in a particular case.
(d)
Payments assigned to a public authority. If the child support payments are assigned
to a public authority or other public agency under MINN. STAT. §256.741, the Court
may not deviate downward from the presumptive child support obligation unless the
Court specifically finds that the failure to deviate downward would impose an
extreme hardship on the obligor.
(e)
Joint legal custody. An award of joint legal custody is not a reason for deviation
from the presumptive child support obligation.
(f)
Self-support limitation. If the obligor establishes that, after payment of income and
payroll taxes, their monthly income is less than the monthly self-support reserve
described in § 2022(a)(2) of this Title, the Court may provide for a downward
deviation from the presumptive child support obligation.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title I, § 1, Exhibit A, § 2023.
Band Ordinance 01-21.
§ 2024. Notice to Band Authority.
The petitioner shall notify the Band Authority of all proceedings for dissolution, legal separation,
annulment, determination of parentage, or the custody of a child if either parent is receiving
public assistance or applies for it subsequent to the commencement of the proceeding. The notice
must contain the full names of the parties to the proceeding and their birth dates.
Historical and Statutory Notes
Source:
Ordinance 06-10, Title I, § 1, Exhibit A, § 2024.
58
SUBCHAPTER 2
PATERNITY
Section
2031. Purpose.
2032. Paternity Proceedings Generally.
2033. [Reserved].
2034. Establishing Paternity Through Court Order.
2035. Establishing Paternity by Acknowledgment.
2036. Paternity Established by Other Jurisdiction.
§ 2031. Purpose.
The purpose of this subchapter is to ensure that the father of every child subject to the
jurisdiction of the Band is identified and paternity established in order to protect, promote, and
help provide for the child’s best interests. This shall include—but not be limited to—the health,
education, and support of the child; the child’s receipt of survivorship, inheritance, and Social
Security benefits; and the transmission of the customs and traditions of the Band to the child.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2031.
Band Ordinance 01-21.
§ 2032. Paternity Proceedings Generally.
(a)
This subchapter provides for the establishment of paternity through court order and
by acknowledgment. Establishment of paternity by court order is generally a
contested process but may also be used if an alleged father is deceased or otherwise
unavailable. Establishment of paternity by acknowledgment is an uncontested process
allowing a father to swear under oath that he is the biological parent of a child.
(b)
An unwed father is not entitled to treatment as a parent under this Title unless his
name appears on the child’s birth certificate or unless his paternity is established or
acknowledged as provided in this subchapter.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2032.
59
§ 2033. [Reserved].
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2033.
§ 2034. Establishing Paternity Through Court Order.
(a)
Who may file. A child, a child’s legal guardian, a child’s biological mother, an
alleged father of a child, or the Band Authority may file a petition requesting the
Court to establish paternity. The biological mother and an alleged father may file
jointly.
(b)
Petition.
(1)
(2)
(c)
A petition to establish paternity shall include the following:
(i)
The names, dates of birth, addresses, and tribal affiliations, if any, of
the biological mother, the alleged father(s), the child, and all others
who have legal rights of custody, visitation, or support of the child;
(ii)
A short statement alleging facts to establish a reasonable possibility of
the requisite sexual contact between the biological mother and alleged
father;
(iii)
The marital status of the biological mother and the alleged father(s);
(iv)
The consent, if any, of the biological mother and the alleged father to
establish the alleged father as the biological father of the child;
(v)
Whether any party has filed an action to determine paternity in any
other court or with any agency and, if so, whether a judgment or other
determination of paternity has been rendered by any other court or
agency;
(vi)
A copy of the child’s certified birth certificate attached as a supporting
document; and
(vii)
The notarized signature of the petitioner verifying the truth of the
information in the Petition.
In a case where domestic violence has been an issue, an address is not
required for the aggrieved party.
Notice. All parties, including the biological mother and each man alleged to be the
60
biological father, shall be notified of the petition and of all hearings, and shall be
given an opportunity to be heard. The party required to provide notice shall do so in
compliance with the notice requirements found in the Federal Rules of Civil
Procedure.
(d)
Summons. The summons to be served on the alleged father(s) along with the Petition
shall include the following notice, in addition to providing a time and date for
appearance:
NOTICE TO RESPONDENT:
(1)
You have been named in a petition alleging paternity. A judgment of paternity
would legally designate the child as your child, grant parental rights to you,
create the right of inheritance for the child, obligate you to pay child support
until the child reaches the age of eighteen (18), or, if the child is disabled or is
attending high school on a full-time basis and the Court so orders, until the
child reaches the age of twenty-one (21), and make your failure to pay child
support punishable by contempt of court.
(2)
You may request genetic tests which will indicate the probability that you are
or are not the father of the child. The Court will order genetic tests on request
by you, the Band Authority, or any other party. Any person who refuses to
take court-ordered genetic tests may be punished for contempt of court.
(3)
The petitioner has the burden of proving by a preponderance of the evidence
that you are the father. If a genetic test shows that you are not excluded as the
father and that the statistical probability of your being the father is ninety-two
percent (92%) or higher, you are presumed to be the father.
(4)
The following defenses are available to you:
(i)
That you were sterile or impotent at the time of conception;
(ii)
That you did not have sexual intercourse with the mother of the child
during the conception period; or
(iii)
That another man did have intercourse with the mother of the child
during the conception period.
61
(5)
(e)
(f)
If you fail to appear at any state of the proceedings, including a scheduled
genetic test, the Court may enter a default judgment finding you to be the
father. A default judgment will take effect twenty-eight (28) days after it is
served on or mailed to you, unless within those twenty-eight (28) days you
present yourself to the Court and establish good cause for your failure to
appear and present yourself for the genetic test. The Court’s entry of a default
judgment does not make a child eligible for enrollment in the Mille Lacs Band
of Ojibwe.
Hearing. The following rules apply to paternity hearings:
(1)
The mother of the child and the alleged father(s) may be compelled to testify
at the hearing.
(2)
Testimony of a physician concerning the medical circumstances of the
pregnancy and the condition and characteristics of the child upon birth is not
privileged.
(3)
The hearing shall be conducted by the judge with no jury.
(4)
Paternity hearings will be closed to outside observers. Only the parties directly
involved, necessary witnesses, and Court personnel shall be present at
hearings. The Court may utilize its discretion to permit other observers,
provided that the Court has offered all parties the opportunity to object.
Genetic Tests.
(1)
If the alleged father(s) is alive and available, the Court may require the child,
mother, and alleged father(s) to submit to genetic tests, unless the Court
determines it would not be in the best interest of the child in accordance with
§ 2034(i) of this Title.
(2)
An alleged father may be excused from the requirement to submit to a genetic
test if the Court determines that there is no reasonable possibility that sexual
contact occurred at or near the time of conception.
(3)
If genetic testing is required by the Court, such testing shall be performed by
an expert in paternity genetic testing approved by the Court.
(4)
(i)
If such test confirms parentage, the disputing parent shall pay the cost
of testing. If the test disproves parentage, the petitioner shall pay the
cost of testing.
(ii)
The Band Authority shall not be required to pay for any genetic testing
ordered by the Court in a non-child support matter.
The Court may order additional genetic tests by other experts qualified in
62
paternity genetic testing upon reasonable request of a party, at that party’s
expense.
(g)
Evidence. The Court may consider the following types of evidence in paternity cases:
(1)
Genetic test results, including the impossibility or the statistical probability of
an alleged father’s paternity, presented by either expert testimony or a written
report accompanied by an affidavit. The following types of genetic tests are
admissible as evidence of paternity provided that the results of all tests, when
taken together, either exclude an alleged father or yield a statistical probability
of at least ninety-two percent (92%) that the alleged father is the biological
father: DNA, HLA (Human Leukocyte Antigens), red blood cell enzyme, red
blood antigen, and serum protein tests;
(2)
Evidence of sexual intercourse between the mother and the alleged father(s) at
any possible time of conception;
(3)
An expert’s opinion concerning the statistical probability of an alleged
father’s paternity, based upon the duration of the mother’s pregnancy;
(4)
Medical or anthropological evidence relating to an alleged father’s paternity
of the child based on tests which may be ordered by the Court and performed
by experts;
(5)
Cultural evidence, a reputation in the community as to paternity, or both; or
(6)
Any other reliable evidence which is relevant to the issue of paternity of the
child.
(h)
Presumption of Paternity. A man is presumed to be the biological father of a child if
he and the biological mother were married at the time of the child’s birth or if the
child was born within three hundred (300) days after the marriage was terminated.
The presumption can only be overcome by genetic testing proving another man is the
father by a statistical probability of ninety-two percent (92%).
(i)
Best Interest of the Child Not to Establish Paternity. The Court may determine
that it is not in the best interest of the child to establish paternity if:
(1)
The child was conceived as a result of rape, incest, sexual abuse of a minor, or
sexual assault;
(2)
A legal proceeding for adoption is pending before a court of competent
jurisdiction; or
(3)
The cooperation of the child’s custodian in the establishment of paternity is
reasonably likely to result in physical or emotional harm to the child or to the
63
child’s custodian.
(j)
(k)
Judgment of Paternity After Failure to Appear. If the respondent is the alleged
father and fails to appear for a Court proceeding or for a genetic or other test at any
time not waived by the Court, the Court may, if no good cause to the contrary exists,
enter an order that the respondent is the father, which shall be served on respondent
personally, or by registered or certified mail to his last known address, or by
publication if the respondent’s address is not known.
(1)
Such order shall take effect twenty-eight (28) days after service unless, within
that time, the respondent presents to the Court evidence of good cause for his
failure to appear at the proceeding or to undergo the genetic or other test.
(2)
No default order shall be entered by the Court unless the respondent was
properly served with notice of the proceeding or test at which he failed to
appear in accordance with § 2034(c) and (d) and the Federal Rules of Civil
Procedure.
Judgment of Paternity. The judgment or order of the Court determining the
existence or nonexistence of paternity shall be based on a preponderance of the
evidence and shall be final subject only to an appeal to the Band’s Court of Appeals.
(1)
If the judgment or order of the Court is different from the child’s birth
certificate, the Band Authority shall send the order to the Department of Vital
Statistics of the state in which the child was born. The Court shall order the
child’s parents to reimburse the Band Authority for any associated expenses.
(l)
Reopening Default Judgment of Paternity. A default judgment declaring a person
to be the father of a child may be reopened upon petition for good cause shown within
ninety-one (91) calendar days of the default judgment.
(m)
Time for Filing Paternity Action. A petition to determine paternity may be filed at
any time for the purpose of establishing the existence of a father and child
relationship. If a petition to determine paternity is brought before the birth of the
child, no hearing or other proceeding shall be conducted until after the birth unless
the court shall determine that an action is necessary in order to preserve testimony.
(n)
Hearing Closed, Records Sealed. Paternity proceedings shall be closed and all
records shall be sealed except as ordered by the Court for the purpose of requesting
an amended birth certificate, or for any purpose consistent with the best interest of the
child.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2034.
Band Ordinance 01-21.
64
§ 2035. Establishing Paternity by Acknowledgment.
(a)
Request for recognition. The mother and alleged father of a child born to a mother
who was not married to the child’s alleged father nor to any other man when the child
was conceived nor when the child was born may, in a writing signed by both of them
before a notary public and filed with the Court, state and acknowledge under oath that
they are the biological parents of the child and wish to be recognized as the biological
parents.
(1)
(b)
(c)
The recognition must be on the form prepared by the Band Authority under §
2035(f), except that it may also include the joinder in recognition provisions
under § 2035(b). The requirement that the mother not be married when the
child was conceived nor when the child was born does not apply if her
husband or former husband joins in the recognition under § 2035(b).
Joinder in recognition by husband. A man who is a presumed father under §
2034(h) of this Title may join in a recognition of parentage that recognizes that
another man is the child’s biological father.
(1)
The man who is the presumed father under § 2034(h) must sign an
acknowledgment under oath before a notary public that he is renouncing the
presumption under § 2034(h) and recognizing that the father who is executing
the recognition under this section is the biological father of the child.
(2)
A joinder in a recognition under this paragraph must be executed within one
year after the child’s birth and the joinder must be filed with the Court.
(i)
The joinder must be on a form prepared by the Band Authority.
(ii)
Failure to properly execute a joinder in a recognition does not affect
the validity of the recognition under this section.
(iii)
A joinder without a corresponding recognition of parentage has no
legal effect.
Revocation of recognition. A recognition may be revoked in a writing signed by the
mother or father before a notary public and filed with the Court within sixty (60)
calendar days after the recognition is executed or the date of a hearing in an action
relating to the child in which the revoking party is a party.
(1)
A joinder in a recognition may be revoked in a writing signed by the person
who executed the joinder and filed with the Court within sixty (60) calendar
days after the joinder is executed.
(2)
Upon receipt of a timely revocation of the recognition of parentage or joinder
in a recognition, the Court shall forward a copy of the revocation to the non65
revoking parent, or, in the case of a joinder in a recognition, to the mother and
father who executed the recognition, and the recognition shall have no further
force or effect.
(d)
(e)
Effect of recognition. Once a recognition has been properly executed and filed with
the Court in accordance with § 2035(a), if there are no competing presumptions of
paternity under § 2034(h) of this Title or if any such presumption has been renounced
under § 2035(b), and if neither the recognition nor the joinder in recognition, if any,
has been revoked under § 2035(c) and no other recognition has been filed for the
same child, the recognition:
(1)
has the force and effect of a judgment or order determining the existence of
the parent-child relationship, is determinative for all purposes related to the
existence of the parent and child relationship, and is entitled to full faith and
credit in other jurisdictions;
(2)
precludes any further action to determine parentage regarding the signatory of
the recognition, except as provided in § 2035(e); and
(3)
is a basis for bringing an action:
(i)
to award legal and physical custody or parenting time to either parent,
provided that, until an order is entered granting custody to another, the
mother shall have sole custody of the child;
(ii)
to establish a child support obligation, which may be retroactive for up
to two years immediately preceding the commencement of the action;
(iii)
to obtain an order for contribution to the reasonable expenses of the
mother’s pregnancy and confinement; and/or
(iv)
to obtain an order for reimbursement of the costs of blood or genetic
testing.
Action to vacate recognition.
(1)
An action to vacate a recognition of paternity may be brought by the mother,
father, husband or former husband who executed a joinder, the child who was
the subject of the recognition, or the Band Authority.
(i)
A mother, father, or husband or former husband who executed a
joinder must bring the action within one year of the execution of the
recognition or within six months after the person bringing the action
obtains the results of blood or genetic tests that indicate that the person
who executed the recognition is not the father of the child.
66
(2)
(ii)
A child must bring an action to vacate within six months after the child
obtains the results of blood or genetic tests that indicate that the person
who executed the recognition is not the father of the child, or within
one year of reaching the age of majority, whichever is later.
(iii)
If the Court finds a prima facie basis for vacating the recognition, the
Court shall order the child, mother, father, and husband or former
husband who executed a joinder to submit to blood or genetic tests.
(A)
If the Court issues an order for the taking of blood or genetic
tests, the Court shall require the party seeking to vacate the
recognition to make advance payment for the costs of the blood
or genetic tests.
(B)
If the party fails to pay for the costs of the blood or genetic
tests, the Court shall dismiss the action to vacate with
prejudice.
(C)
The Court may also order the party seeking to vacate the
recognition to pay the other party’s reasonable attorney’s fees,
costs, and disbursements.
(D)
If the results of the blood or genetic tests establish that the
person who executed the recognition is not the father, the court
shall vacate the recognition.
(E)
If a recognition is vacated, any joinder in the recognition under
§ 2035(b) is also vacated.
(F)
The Court shall terminate the obligation of a party to pay
ongoing child support based on the recognition.
(G)
A modification of child support based on a recognition may be
made retroactive with respect to any period during which the
moving party has pending a motion to vacate the recognition
but only from the date of service of notice of the motion on the
responding party.
The burden of proof in an action to vacate the recognition is on the moving
party. Such request must be on the basis of fraud, duress, or material mistake
of fact.
(i)
The legal responsibilities in existence at the time of an action to
vacate, including child support obligations, may not be suspended
during the proceeding, except for good cause shown.
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(f)
Recognition form. The Band Authority shall prepare a form for the recognition of
parentage under this section. In preparing the form, the Band Authority shall consult
with the individuals specified in § 2035(g). The recognition form must be drafted so
that the force and effect of the recognition, the alternatives to executing a recognition,
and the benefits and responsibilities of establishing paternity are clear and
understandable. The form must include a notice regarding the finality of a
recognition, the revocation procedure under § 2035 (c), and the procedure for
vacating the recognition under § 2035 (e). The form must include a provision for each
parent to verify that the parent has read or viewed the educational materials prepared
by the Band Authority describing the recognition of paternity. The individual
providing the form to the parents for execution shall provide oral notice of the rights,
responsibilities, and alternatives to executing the recognition. Notice may be provided
by audiotape, videotape, or similar means. Each parent must receive a copy of the
recognition.
(g)
Paternity educational materials. The Band Authority shall prepare educational
materials for new and prospective parents that describe the benefits and effects of
establishing paternity. The materials must include a description and comparison of the
procedures for establishment of paternity through a recognition of parentage under
this section and an adjudication of paternity under § 2034 of this Title. The Band
Authority shall consider the use of innovative audio or visual approaches to the
presentation of the materials to facilitate understanding and presentation. In preparing
the materials, the Band Authority shall consult with child advocates and support
workers, battered women’s advocates and advocates for domestic abuse victims,
social service providers, educators, attorneys, hospital representatives, and people
who work with parents in making decisions related to paternity. The Band Authority
will make the materials available without cost to hospitals, requesting agencies, and
other persons for distribution to new parents.
(h)
Hospital distribution of educational materials; recognition form. Hospitals that
provide obstetric services and the Band Authority shall distribute the educational
materials and recognition of parentage forms prepared by the Band Authority to new
parents and shall assist parents in understanding the recognition of parentage form in
accordance with § 2035 (f).
(i)
More than one recognition. If the Court receives more than one recognition of
parentage for the same child, the Court shall notify the signatory on each recognition
that the recognition is no longer effective and that each man has only a presumption
of paternity.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2035.
Band Ordinance 01-21.
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§ 2036. Paternity Established by Other Jurisdiction.
(a)
The Court shall give full faith and credit to properly issued court and administrative
orders, judgments, or decrees of other Indian tribes, states, or federal agencies
establishing paternity.
(1)
(b)
Such orders will be considered properly issued when the issuing court or
administrative agency had personal jurisdiction over the person claimed to be
bound by the order and subject-matter jurisdiction over the matter, proper
service of process under the law of the issuing jurisdiction was made on such
person, and the order was issued pursuant to the laws of that jurisdiction and
does not violate the laws of the Band.
An order described in § 2036(a) must be authenticated by reasonable proof that the
document tendered to the Clerk of the Court is a true copy of the order as it is
recorded in the agency or court of the issuing jurisdiction.
(1)
An authentication stamp issued by a clerk of court or custodian of records, or
a court seal, is sufficient evidence of authenticity.
(c)
Unless defects in jurisdiction are apparent on the face of an order described in §
2036(a), the person contesting enforcement of the order has the burden of showing
the order is not valid. Upon a failure to respond to a notice of the order and to timely
contest it, the Court shall enforce it as a Band Court Order.
(d)
Where an order described in § 2036(a) is invalid by reason of a lack of personal
jurisdiction in the agency or court of the issuing jurisdiction, the Court may adopt
some or all of its provisions as an original order of the Court to the extent that it does
not violate the laws of the Band.
(e)
An order described in § 2036(a) does not automatically establish paternity for Band
enrollment purposes.
Historical and Statutory Notes
Source:
Band Ordinance 06-10, Title II, § 2, Exhibit B, § 2036.
69
SUBCHAPTER 3
ENFORCEMENT
Section
2051. Withholding.
2052. Withholding Upon Notice from Obligee or Public Authority.
2053. Withholding Hearing; Service of Withholding Order.
2054. Effect of Notice or Order for Withholding; Commencement and Amount of
Withholding; Orders from Other Jurisdictions.
2055. Priority.
2056. Employer Expenses.
2057. Notice from Obligor to Employer.
2058. Notice to Court Upon Termination of Employment.
2059. Order Terminating Income Withholding.
§ 2051. Withholding.
(a)
Court-ordered child support shall be withheld from the obligor’s income, regardless
of the source, in accordance with this subchapter.
(b)
If a determination is made that an obligor has made excess child support payments,
the Band Authority must be responsible to immediately reimburse the obligor. To
recover its costs, the Band Authority may motion the Court to recoup the excess
payments from the obligee.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29. T. II, § 1.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2051.
Band Ordinance 01-21.
§ 2052. Withholding Upon Notice from Obligee or Public Authority.
(a)
Except as provided in § 2052(c), an employer or other payer of funds must withhold
income or other payments from an obligor upon notice from an obligee or public
authority when the following conditions are met:
(1)
the obligor is at least 30 days in arrears in making Court-ordered child support
payments to the obligee;
(2)
the obligee or public authority serves written notice of income withholding,
showing the current child support obligation and the amount of the arrearage,
70
on the obligor at least 20 days before serving the notice of income
withholding and a copy of the Court’s order establishing the child support
obligation on the employer or other payer of funds;
(3)
within the 20-day period, the obligor fails to move the Court for an order
denying or changing the amount of withholding on the grounds that an
arrearage of at least 30 days did not exist as of the date of the notice of income
withholding, or that the notice contains a mistake of fact with respect to the
amount of the current child support obligation or the amount of the arrearage;
and
(4)
the obligee or public authority serves a copy of the notice of income
withholding, showing the current child support obligation and the amount of
the arrearage, a copy of the Court’s order, and the provisions of this
subchapter on the employer or other payer of funds.
(b)
The obligor may, at any time, waive the written notice required by § 2052(a)(2).
(c)
Income or other payments shall not be subject to withholding where:
(1)
Either the custodial or noncustodial parent demonstrates, and the Court enters
a finding, that there is good cause not to require withholding of income or
other payments; or
(2)
A signed written agreement is reached between the noncustodial and custodial
parent, which provides for an alternative to withholding, and the agreement is
reviewed and entered into the record by the Court.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, §§ 2.01, 2.03.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2052.
§ 2053. Withholding Hearing; Service of Withholding Order.
(a)
Within 30 days from the date an obligor files a motion with the Court to deny or
change the amount of withholding under § 2052(a)(3) of this Title, the Court shall
hold a hearing on the motion and notify the parties of its decision.
(1)
If the Court finds an arrearage of at least 30 days did not exist as of the date of
the notice of income withholding, the Court shall enter an order denying
withholding.
(2)
If the Court finds that an arrearage of at least 30 days existed as of the date of
the notice of income withholding, but that there was a mistake in the amount
71
of the current support obligation or the amount of the arrearage, the Court
shall order income withholding in the corrected amount. If the Court finds
there was no mistake of fact, the Court shall order income withholding in the
amount specified in the notice. If the Court orders income withholding, it shall
order withholding to begin no later than the first pay period that occurs after
14 days following the date of the hearing.
(b)
The Band Authority will promptly refund amounts which have been improperly
withheld.
(c)
If the Court issues an order for withholding under § 2053(a), it shall provide a copy of
the order to the Band Authority. The Band Authority shall serve notice of the order on
the obligor’s employer or other payer of funds using the standard Federal withholding
form together with a copy of the order. The Band Authority must allocate amounts
across multiple withholding orders to ensure that in no case shall allocation result in a
withholding for one of the support obligations not being implemented.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, § 3.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2053.
Band Ordinance 01-21.
§ 2054. Effect of Notice or Order for Withholding; Commencement and Amount of
Withholding; Orders from Other Jurisdictions.
(a)
Notwithstanding any law to the contrary, a notice of withholding served in
accordance with § 2052(a) of this Title or a withholding order issued and served in
accordance with § 2053 of this Title, is binding on an employer or other payer of
funds who is subject to the jurisdiction of the Band
(b)
Withholding shall begin no later than the first pay period that occurs after 14 days
following the date of service of the notice to the obligor’s employer or other payer of
funds under § 2052(a)(4) of this Title or § 2053(c) of this Title.
(c)
(1)
An employer shall not discharge, refuse to hire, or otherwise discipline an
employee as a result of a wage or salary withholding authorized by this
subchapter.
(2)
An employer who is found to have violated this provision shall be subject to a
fine of $500.00.
Except as provided in § 2054(d) and (h), an employer or other payer of funds shall
withhold and pay to the obligee or public authority, as specified in the notice served
on the employer or other payer of funds:
72
(1)
the obligor’s current child support obligation; and
(2)
an additional amount not to exceed 20 percent of the current monthly
obligation until the arrearage is paid.
(d)
An employer or other payer of funds shall not withhold an obligor’s earnings more
than the maximum amount permitted under the Consumer Credit Protection Act, 15
U.S.C. § 1673(b)(2).
(e)
Absent an order to the contrary, if an arrearage exists at the time a support order
would otherwise terminate, income withholding shall continue in effect or may be
implemented in an amount equal to the support order until all arrears have been paid
in full.
(f)
If an employer or other payer of funds fails to withhold income or other payments in
accordance with this subchapter, the employer or other payer of funds will be liable
for the accumulated amount the employer or other payer of funds should have
withheld from the obligor.
(g)
The Band Authority is responsible for receiving and processing income withholding
orders from States, Tribes, and other entities, and ensuring that such orders are
properly and promptly served on employers and other payers of funds within the
Band’s jurisdiction. The Band Authority will extend the full range of services
available to respond to all requests from, and cooperate with, State and Tribal IV-D
agencies.
(h)
The Band, the Court, and the Band Authority will recognize child support orders
issued by other Tribes and Tribal organizations and by States, in accordance with the
requirements under the Full Faith and Credit for Child Support Orders Act, 28 U.S.C.
§ 1738B. The Court may not delay enforcement of any foreign child support orders.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, §§ 2.02, 4, 5.02.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2054.
Band Ordinance 01-21.
§ 2055. Priority.
(a)
A notice or order for withholding under this subchapter or execution or garnishment
upon a judgment for child support arrears shall have priority over any other
attachment, execution, garnishment, or wage assignment and shall not be subject to
the statutory limitations on amounts levied against the income of the obligor, except
as provided for in this subchapter. Amounts withheld from an employee’s income
shall not exceed the maximum permitted by law.
73
(b)
In the event that there is more than one withholding order for child support for an
obligor, the employer or other payer of funds shall put the orders into effect, giving
priority first to amounts currently due and not in arrears up to the maximum amount
allowed by law. If there are two or more orders for child support which cumulatively
exceed the maximum amount allowed by law, the amount each obligee receives from
the withholding shall be determined as the amount equal to the number of each
obligee’s children for whom support payments are due as a percentage of the total
number of children for whom support payments are due. This paragraph pertains to
withholding only and shall not affect the actual amount of support ordered.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, § 5.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2055.
Band Ordinance 01-21.
§ 2056. Employer Expenses.
An employer or other payer of funds may deduct two dollars from the obligor’s remaining
income or other payments for each payment made pursuant to a withholding order under this
subchapter to cover the expenses involved in the withholding.
Historical and Statutory Notes
Source:
Band Ordinance 2-94, Ch. 29, T. II, § 6.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2055.
§ 2057. Notice from Obligor to Employer.
When an individual is hired for employment, the employer shall request that the individual
disclose whether or not the individual has Court-ordered child support obligations that are
required by law to be withheld from income and the terms of the Court order. The individual
shall disclose this information at the time of hiring. When an individual discloses that the
individual owes child support that is required to be withheld, the employer shall begin
withholding according to the terms of the order and under this subchapter.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, §7.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2057.
74
§ 2058. Notice to Court Upon Termination of Employment.
When withholding is in effect and the obligor’s employment is terminated, the obligor and the
obligor’s employer or other payer of funds shall notify the Court and the obligee or public
authority responsible for child support enforcement of the termination within ten days of the
termination date. The notice shall include the obligor’s home address and the name and address
of the obligor’s new employer or payer of funds, if known. Information disclosed under this
subchapter shall not be divulged except to the extent necessary for the administration of child
support or when authorized by law.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, § 7.01.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2058.
§ 2059. Order Terminating Income Withholding.
Whenever an obligation for child support terminates under the terms of the order of this chapter,
and where the obligation is enforced by income withholding from the obligor, the Court shall
enter an order directed to the obligor’s employer or other payer of funds, which terminates the
income withholding. The order terminating income withholding must specify the effective date
of the order, referencing the initial order or decree establishing the support obligation.
Historical and Statutory Notes
Source:
Band Ordinance 26-94, Ch. 29, T. II, § 8.
Band Ordinance 06-10, Title III, § 2, Exhibit C, § 2059.
75
TITLE 11 – ENVIRONMENT, NATURAL
RESOURCES, ANIMALS AND PLANTS
CHAPTER 1
ENVIRONMENTAL PROTECTION
Subchapter
1. General Provisions
2. Environmental Protection Ordinance
3. Litter
Section
1
101
201
SUBCHAPTER 2
ENVIRONMENTAL PROTECTION ORDINANCE
Section
101. Title of Subchapter.
102. Statement of Purpose.
103. Definitions.
104. Jurisdiction.
105. Enforcement.
106. Violations and Penalties.
107. Injunctions.
108. Notice of Violation.
109. Default.
110. Setting Hearing Date.
111. Sewage Disposal System Permits.
112. Permits Generally.
113. Environmental Assessments and Impact Statements.
114. Format for The Environmental Impact Statement.
115. Variances
116. Water-Policy and Goals.
117. Water-Definitions.
118. Water-Standards.
119. Air-Policy and Goals.
120. Air-Definitions.
121. Air-Standards.
122. Soils-Policy and Goals.
123. Soil-Definitions.
124. Soils-Standards.
76
125.
126.
127.
128.
Subsurface Resources.
Forestry-Policy and Goals.
Forestry-Standards.
State Civil Jurisdiction.
Historical and Statutory Notes
The Preamble of Band Statute 1091-MLC-24 provides: "It is enacted by the Band Assembly of the Mille
Lacs Band of Chippewa Indians in order to exercise a more effective form of tribal government to
regulate the natural resources of the Mille Lacs Band of Chippewa Indians."
§ 101. Title of Subchapter.
This subchapter shall be known as the Mille Lacs Band of Chippewa Indians Environmental
Protection Ordinance.
Historical and Statutory Notes
Source:
Band Statute 1163-MLC-21, T.II, § 1.
§ 102. Statement of Purpose
The Mille Lacs Band of Chippewa Indians Natural Resource Protection Ordinance to protect the
natural resources within the jurisdiction of the Mille Lacs Band of Chippewa Indians as defined
under the Constitution of the Minnesota Chippewa Tribe pursuant to Section 16 of the Act of
June 18, 1934 (48 Stat. 984), amended June 15, 1935 (49 Stat. 3781) and approved by the
Secretary of Interior on July 24, 1936. This subchapter is to provide a uniform set of standards
which are necessary to supplement the Mille Lacs Reservation's Conservation Code, so that
hunting, fishing, trapping, wild rice and all other natural resources of Reservations' and Bands'
may be preserved and protected. Where such Band laws and standards do not exist and are not
promulgated, these laws and standards will apply. And whereas the Mille Lacs Band of
Chippewa Indians finds that water is the primary resource of the natural resources system, the
protection of the quality and quantity of the water resources is the primary objective of these
laws and furthermore, the inter-relationships of water and other natural resources is such that the
management of soil, timber, air and mineral resources has both direct and indirect effects upon
the quality and quantity of the water, fish, wild rice and wildlife resources. These and all other
interaction of resources will be considered when planning and management activities are
engaged.
Historical and Statutory Notes
Source:
Band Statute 1091-MLC-24, § 1.01.
Band Statute 1163-MLC-21, T.II, § 1.01.
77
Cross References
Natural Resources Protection Code, see 11 MLBS § 2001.
§ 103. Definitions.
(a)
"Band" means the Mille Lacs Band of Chippewa Indians and the constituent Bands
of the Non-Removable Mille Lacs Band of Chippewa Indians.
(b)
"Clearcutting" means any timber harvested and timber cutting on any and all tracts
of land where the standing timber remains after harvesting or cutting is less than 40
trees of 8 inches or greater dbh per acre.
(c)
"Day" means a 24-hour period which shall be from 12:00:00 a.m. to 11:59:59 p.m. in
the Central Time zone of the United States.
(d)
"Lake" means anybody or accumulation of water, whether natural or artificial, the
majority of which is open water, which is an area 10 acres of more, and in depth at
least 15 feet at some point.
(e)
"Marsh, Wetland" means anybody or accumulation of water whether natural or
artificial, whether or not seasonal, where a majority area of the surface water contains
emergent vegetation.
(f)
"Non-Point Source" means man-made or man-induced pollution from any and all
sources not included in the point source definition.
(g)
"Open Water" means a water surface absent of emergent vegetation.
(h)
"Person" means any municipality, governmental sub-division, public or private
corporation, individual, partnership, or other entity, including but not limited to
association, commission or any interstate body, and includes any officer or governing
or managing body of any municipality, governmental subdivision, or public or private
corporation or other entity.
(i)
"Point Source" means any discernible, confined, and discrete conveyance, including
but not limited to any pipe, stack, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged.
(j)
"Pollution, Water Pollution, Air Pollution" means the man-made or man-induced
alteration of the chemical, physical, biological or radiological integrity of the waters
or atmosphere of the Mille Lacs Band of Chippewa Indians.
78
(k)
"Pond" means anybody or accumulation of water, whether natural or artificial, the
majority of which is open water, which is an area less than 10 acres, whether or not
seasonal.
(l)
"River, Stream" means any waterway or watercourse, whether natural or artificial,
whether or not seasonal, which follows a flow channel to any lake, pond, marsh, river
or to any other accumulation of water.
(m)
"Road" means any roadway, whether paved; graveled or otherwise surfaced, which
is maintained for public use of four-wheeled vehicles.
(n)
"Standard" means water quality and quantity standards, air quality standards and soil
protection standards as outlined in this Mille Lacs Band of Chippewa Indians Resource
Protection Ordinance.
(o)
"Waters of the Mille Lacs Band of Chippewa Indians" means all streams, lakes,
ponds, marshes, watercourses, waterways, wells, springs, reservoirs, aquifer, irrigation
system, drainage systems and all other accumulations of water, surface or
underground, natural or artificial, public or private, which are contained within, flow
through or border upon lands of the Mille Lacs Band of Chippewa Indians, and which
are contained with, flow through or border upon any other lands where Mille Lacs
Band of Chippewa Indians member's rights of hunting, fishing, trapping and gathering
rice are reserved.
Historical and Statutory Notes
Source:
Band Statute 1091-MLC-24, § 2.
Band Statute 1163-MLC-21, T.I, § 2.
§ 104. Jurisdiction.
(a)
The jurisdiction of the Mille Lacs Band of Chippewa Indians under this subchapter
shall extend to:
(1)
All lands within the exterior boundaries of the constituent Bands of the NonRemovable Mille Lacs Band of Chippewa Indians as created by treaty,
Executive Order, or federal act, notwithstanding the issuance of any patent and
including rights-of-way running through said land.
(2)
All dependent Mille Lacs Band of Chippewa communities within the state of
Minnesota.
(3)
All Mille Lacs Band of Chippewa Indians allotments, whether within or
without the boundaries of member Bands, the Indian titles to which have not
been extinguished, including rights-of-way running through the same.
79
(b)
Jurisdiction shall extend over all persons or corporations whether Indian or non-Indian.
Historical and Statutory Notes
Source:
Band Statute 1091-MLC-24, § 3.
Band Statute 1163-MLC-21, § 3.
Cross References
Jurisdiction, Court of Central Jurisdiction, see 5 MLBS § 111.
§ 105. Enforcement.
This Title shall be enforced by Reservation Conservation Officers or any other duly appointed
officers of the Mille Lacs Band of Chippewa Indians or its member Bands or any other persons
as provided by the Ordinance of the Mille Lacs Band of Chippewa Indians or its member Bands.
Historical and Statutory Notes
Source:
Band Statute 1091-MLC-24, § 4.
Band Statute 1163-MLC-24, T. II, § 4.
Cross References
Law enforcement and natural resources officers, powers, environmental protection, see 11 MLBS § 13.
§ 106. Violations and Penalties.
Any violation of this subchapter shall be considered a civil offense subject to the following
penalties:
(a)
Pay the cost of any necessary cleanup, restoration or reclamation caused by the
violation, as ordered by the Court of Central Jurisdiction, or by any administrative
body with jurisdiction.
(b)
Pay any actual damages for in
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