WHITE MOUNTAIN APACHE

DOMESTIC RELATIONS CODE

Approved 2/18/87

Res. No. 02-87-61

WHITE MOUNTAIN APACHE

DOMESTIC RELATIONS CODE

TABLE OF CONTENTS

CHAPTER ONE

MARRIAGE AND DIVORCE

SECTION 1.1 MARRIAGES 1

SECTION 1.2 RECORDING OF MARRIAGES AND DIVORCES 1

SECTION 1.3 MARRIAGE 1

SECTION 1.4 SOLEMNIZATION OF MARRIAGE 1

SECTION 1.5 MARRIAGE LICENSE 2

SECTION 1.6 PROHIBITED VOID MARRIAGES 2

SECTION 1.7 WITNESSES 2

SECTION 1.8 CEREMONIAL MARRIAGE - ONLY RECOGNIZED 3

SECTION 1.9 ANNULMENT OF MARRIAGE 3

SECTION 1.10 DIVORCE 3

SECTION 1.11 PROCEDURE FOR ANNULMENT OR DIVORCE 4

SECTION 1.12 LEGITIMACY OF CHILDREN NOT AFFECTED 5

SECTION 1.13 PERMANENT ALIMONY, CUSTODY OF CHILDREN AND COSTS 5

SECTION 1.14 MODIFICATION OF JUDGMENT AFFECTING ALIMONY AND SUPPORT OF MINOR CHILDREN 5

SECTION 1.15 DETERMINATION OF PATERNITY AND SUPPORT 6

WHITE MOUNTAIN APACHE

DOMESTIC RELATIONS CODE

[Historical Note: Except as otherwise noted, the Domestic Relations Code is derived from Ordinance 96, enacted May 1, 1974.]

CHAPTER ONE

MARRIAGE AND DIVORCE

SECTION 1.1 MARRIAGES

    The White Mountain Apache Tribal Court may issue marriage licenses to proper persons, one of whom is a member of the Tribe, or a member of a federally recognized tribe, such marriage licenses to be recorded in the County. Any tribal custom marriage not so licensed shall not be recognized as valid. The Trial Court is hereby authorized and instructed to issue marriage certificates to all these persons known to be living together as husband and wife previous to August 26, 1938. Marriage certificates issued shall become a matter of record in the Trial Court, copies of which shall be furnished to the Agency and Tribal Council Secretary.

SECTION 1.2 RECORDING OF MARRIAGES AND DIVORCES

    All Indian marriages and divorces, whether consummated in accordance with state laws, or any legal agency having authority to issue marriage and divorce certificates, or in accordance with Tribal law, shall be recorded within thirty (30) days with the White Mountain Apache Tribal Court and copies shall be furnished to the Agency office by the Court.

SECTION 1.3 MARRIAGE

    Marriage is a personal relation arising out of civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage but must be followed by a solemnization.

SECTION 1.4 SOLEMNIZATION OF A MARRIAGE

    A marriage may be solemnized by any recognized clergyman or other official authorized to perform the ceremony by the laws of the State of Arizona, or the laws of the White Mountain Apache Tribe, but only after issuance of a license.

SECTION 1.5 MARRIAGE LICENSE

A. Any resident of the Fort Apache Indian Reservation, eligible by age and otherwise, as hereinafter provided may obtain a marriage license in conformity with State Law or the laws of the White Mountain Apache Tribe from the Court, and such marriages consummated by authority of such license shall be legal in every respect in the State of Arizona. A fee set by the Tribal Court shall be paid upon the issuance of a marriage license.

B. Persons under eighteen (18) years of age are to be considered minors; and whenever parents or guardians give consent to the marriage between minors, the parents or guardians shall appear before, and execute and file with the Court a form titled, "Consent to Marriage of Minor", and he or she thereby assumes the responsibility, in part, to provide for the minors and children born until the minor parents come of age. The assumption of this responsibility is included in the written consent.

C. A marriage license must not in any case be granted where either party is under age necessary to render the marriage absolutely valid, without previous consent of the parent or guardian of such minor, nor shall a marriage license be issued to divorcees until six months after the issuance of the divorce decree.

D. A certificate of health from a recognized physician of the United States Indian Service or any licensed practitioner certifying that the applicant is free from infectious and communicable diseases, shall be filed by the applicant with the Clerk of the Court at the time application is made for marriage license and no license shall be issued in the absence of a health certificate. In case a health certificate is not available and the case justifies, the Court may order the issuance of a marriage license.

SECTION 1.6 PROHIBITED VOID MARRIAGES

    Marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters, of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews, and between first cousins or within the maternal clan are incestuous and void.

SECTION 1.7 WITNESSES

    A marriage ceremony shall be performed in the presence of at least two witnesses of lawful age, and a certificate of such marriage shall be signed by at least two witnesses which shall be returned by the person performing the marriage to the White Mountain Apache Tribal Court (for recording) within a period of ten days.

SECTION 1.8 CEREMONIAL MARRIAGE - ONLY RECOGNIZED

    A marriage may not be performed by agreement without a marriage ceremony, and no marriage performed within this jurisdiction is valid unless a license be issued as herein provided and the marriage solemnized according to the laws of the State in which it was performed and a record of same filed with the Apache Tribal Court.

SECTION 1.9 ANNULMENT OF MARRIAGE

    The Court may dissolve a marriage and may decree the marriage to be null and void for any of the following causes existing at the time of the marriage:

(1) where the case shall be an impediment rendering such contract void;

(2) that the party in whose behalf it is sought to have the marriage annulled was under the age of consent, and such marriage was contracted without the consent of his or her parents or guardian or person having charge of him or her, unless after attaining the age of consent such party for any time freely cohabited with the other as husband and wife;

(3) the husband and wife of either party is living and the marriage with such former husband or wife was then in force;

(4) that the consent of either party was obtained by fraud unless such party after wards freely cohabited with the other as husband and wife having knowledge of such fraud.

SECTION 1.10 DIVORCE

    The Court may grant or issue a divorce from the bonds of matrimony in any of the following cases; Provided, that after a divorce has been granted the parties thereto may not marry until six months after the issuance of the divorce decree:

(1) when adultery has been committed by either party.

(2) when one of the parties was declared physically or mentally incompetent by a physician at the time of the marriage and the same has continued to the time of the commencement of the action.

(3) when one of the parties has been convicted of a felony and sentenced to imprisonment therefor and has not been convicted on the testimony of the other party, but such action may not be brought until one year after the final judgment of the conviction; a pardon shall not be a defense to such action.

(4) when either party has willfully deserted the other; ;or for the habitual intemperance of either party.

(5) where the husband or wife is guilty of cruel treatment or outrages toward the other, whether by the use of personal violence or other means.

(6) when either has neglected to provide the other party or family with the common necessities of life, having the ability to provide the same, or failing to do so by reason of his or her idleness, or dissipation.

(7) prior to the marriage either party shall have been convicted of a felony or infamous crime in any state or country without the knowledge of the other party of such fact at the time of such marriage.

(8) in favor of the husband when the wife at the time of the marriage was pregnant by a man other than the husband, and without the husband's knowledge at the time of such marriage.

(9) irreconcilable incompatibility or differences.

SECTION 1.11 PROCEDURE FOR ANNULMENT OR DIVORCE

                A. Any person applying for annulment or divorce shall deposit with the Tribal Court a fee set by the Court at the time of the action. In case the defendant files a cross complaint, the court may require the defendant to pay into the court a fee of like amount. Fees may be waived upon proof of indigency satisfactory to the Court.

                B. The complaining party shall file with the court a verified complaint stating concisely his or her cause for action and thereupon the Court shall issue a summons in the name of the Tribal Court, to the defendant apprising him or her of the pendency of action and the summons shall concisely state the grounds upon which annulment or divorce is asked.

                C. The summons when issued, together with the copy of the complaint shall be delivered to any authorized officer of the Court for service. The officer shall report to the Court showing time of service of the summons.

                D. In case the service cannot be made upon the reservation, the summons together with a copy of the complaint shall be forwarded to the superintendent of the reservation or law enforcement officers where the defendant is enrolled or found to be residing and there served or if outside any reservation by service of process in accordance with the Rules of Civil Procedure.

                E. If the service cannot be made personally either under the jurisdiction of the Tribal Court, or on the reservation where the defendant is enrolled or residing, or in accordance with Section 1.11(D), a return shall be made to the Court showing said facts; thereupon the Court shall cause to be filed with the Court and at the Agency a copy of the summons and complaint. A copy of the summons and complaint shall be mailed by Certified Mail to the last known post office address, and service shall be deemed complete 30 days after filing said summons and complaint. The defendant shall have 30 days in which to answer the complaint from the time of the completed service. If the defendant fails to appear and answer within the time required, the case may be heard by the Judge of the Court at any time thereafter; but if the defendant answers the summons, then the trial action shall be placed on the calendar by the clerk and tried by the Court.

                F. The court shall thereupon make and enter findings of facts and conclusions of law, and issue the decree signed by the Chief Judge or Associate Judge which shall be effective from date of signature.

SECTION 1.12 LEGITIMACY OF CHILDREN NOT AFFECTED

                A divorce shall not affect the legitimacy of the children.

SECTION 1.13 PERMANENT ALIMONY, CUSTODY OF CHILDREN AND COST

                A. In the final decree of divorce the court may in addition to the division of the common property of the parties direct either party to pay the other such amounts as may be necessary for the support and maintenance of the other party and the minor children of the parties. The custody of the children may be awarded to the wife or husband as may be necessary or proper, and the Court may decree that alimony may be paid in one sum or installments, and in such decree or decree of annulment of the marriage the Court may make such disposition of and provision for their minor children, as shall be most expedient under all circumstances for their present comfort and future well being.

                B. The court may assess the cost to either or both parties of the suit, and may in the decree change the name of the wife if especially asked for in her pleadings.

SECTION 1.14 MODIFICATION OF JUDGMENT AFFECTING ALIMONY AND SUPPORT OF MINOR CHILDREN

    The Court may, from time to time, after the entry of the final decree or on petition of either party, amend, revise and alter such portions of the decree as relate to the payment of money for the support and maintenance of either party or the support of their children, as may be just, and amend, change, or alter any provision therein respecting the care, custody, or maintenance of the children of the parties as the circumstances of the parents and the welfare of the children may require.

SECTION 1.15 DETERMINATION OF PATERNITY AND SUPPORT

    The Tribal Court shall have jurisdiction of all suits brought to determine the paternity of a child and to obtain the judgment for the support of the child. A judgment of the Court establishing the identity of the father of the child shall be conclusive of the fact in all subsequent determinations of inheritance by the Court.

Form No. 1

WHITE MOUNTAIN APACHE TRIBAL COURT

State of Arizona

APPLICATION FOR MARRIAGE LICENSE

IN THE MATTER OF THE APPLICATION OF )

_____________________________________ )

and __________________________________ )

_____________________________________ ) FOR A LICENSE TO MARRY

Fort Apache Indian Reservation     )

County of Navajo                           ) ss.

State of Arizona                              )

The undersigned, being first duly sworn, upon his (her) oath does declare, depose and certify: that _______________________________ (Name in Full), is his (her) true name; that his (her) date of birth is ___________________, that he (she) is a resident of __________________________ (Town, County and State), that he (she) is not related to ________________________________ (husband or wife), and that he (she) has not been granted a divorce by any Court within the period of six months.

______________________________________

(Signature of Applicant)

Subscribed and sworn to before me, this ______ day of _________________, 19_____.

_____________________________________

(Tribal Court)

By:__________________________________

(SEAL)

Book:________

Page:_______

Form No. 2

WHITE MOUNTAIN APACHE TRIBAL COURT

State of Arizona

MARRIAGE LICENSE

____________________

To any regularly licensed or Ordained Minister of the Gospel, or any Justice of the Peace within this County:

        You are hereby authorized to solemnize the

RITES OF MATRIMONY

Between

______________________________________ of ______________________________________ ______________________________________ County, Arizona, and endorse the name on this License and make return thereof to this office according to Tribal law, which provides that recording shall be made within a period of ten days.

In Witness Whereof, I have hereunto set my hand and affixed my official seal this ____ day of _________________, 19______.

(SEAL)

_____________________________________

(Clerk of the Court)

By:__________________________________

(Fill out in duplicate)