26.18.050 Forfeiture of Property Procedure

(a) Petition to institute forfeiture proceedings:

(1) The Tribal Prosecutor may file a petition to institute forfeiture proceedings with the Clerk of the Tribal Court 45 days after receiving notice of the seizure of property subject to forfeiture by law enforcement officers or agents.

(2) The clerk shall issue a summons at the request of the petitioning party who shall cause the petition and summons to be served upon all owners or claimants of the property pursuant to the requirements of Title 2 Judicial Procedure Civil.

(3) The Forfeiture is against the property to be forfeited with notice to the interested parties.

(b) Hearing concerning forfeiture of property.

At the time the forfeiture petition is filled, the clerk of court shall schedule a hearing on the petition not less than 60 days after date of filing. The hearing shall comply with the provisions of Title 2 Judicial Procedure Civil.

(1) There is a rebuttable presumption of forfeiture of property.

(2) If the individual who was served with process under subsection (a) of this section fails to appear at the hearing, the Court shall order the property forfeited to the Turtle Mountain Band of Chippewa Indians by default.

(d) Proof required or permitted at hearing to rebut the presumption of forfeiture.

(1) At the hearing scheduled under subsection (b) of this section, the Court may order a further evidentiary hearing at which:

(A) An owner of the property must prove that the conveyance was not used for the purpose charged.

(B) An owner of the property must prove, in the alternative, that the use of the property occurred with his/her knowledge or consent.

(C) A claimant of a secured interest in the property must prove that his/her interest is bona fide and that it was created without the knowledge that the property was being used or was to be used for the purpose charged.

(e) Disposition of property following evidentiary hearing.

(1) If the Court finds that the property was not used for the purpose charged or that the property was used without the knowledge or consent of the owner, it shall order the property released to the owner of record as the date of the seizure.

(2) If the Court finds that the property was used for the purpose charged and, that the use was with the knowledge or consent of the owner, the property shall be disposed of as follows:

(A) If proper proof of his/her claim is presented at the hearing by the holder of a security interest, the Court shall order the property released to the holder of the security interest with all title, right and interest to the owner extinguished. If the value of the property is more than the security interest, the additional value shall be returning to the Turtle Mountain Band of Chippewa Indians.

(B) If no claimant exists, and the Turtle Mountain Band of Chippewa Indians wishes to retain the property for its official use, it may do so. If such property is not to be retained, it shall be sold.

(f) Disposition of proceeds of sales and/or fines.

(1) Whenever property is seized, forfeited and sold under the provisions of this title, the net proceeds of the sale must be remitted to the Chief Financial Officer of the Turtle Mountain Tribe to be divided as follows:

(A) One-half to the Tribal Court Account; and

(B) One-half to the Drug Enforcement Team to be used for drug enforcement purposes, to the extent such a Team has been formally established; if no such Team has been formally established.