Tribal Court Management Issues
“The Clerks are the portals to the halls of justice. The impressions they make on those using the Court reflect on the entire judicial process.”
Judge David Raasch
Presiding Judge of the Stockbridge-Munsee Tribal Court
© Tanana Chiefs Conference,
Inc. and Lisa Jaeger
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
There are many parts and pieces that go together to create a management system for operating a tribal court. There is no one tribal court management system that is right for every court, but whatever system a tribe chooses should be consistent and designed to fit the needs and resources of the tribe. Some of the factors to consider when developing a process for recording court proceedings, setting up filing systems, and determining who will do what tasks for the tribal court, are the size of the caseload the court will handle, the capability of tribal staff, the available budget to work with, and the quality and amount of storage capacity available. Whatever system the tribe develops should be consistent, but flexible and adaptable enough to accommodate change and growth of the tribal court.Tribal Court Clerks
Tribal court clerks have essential roles in the day-to-day operation and management of tribal courts, and much of the work to keep the tribal court going forward falls on their shoulders. Tribal court clerks are often the first person those who are using the court encounter. It is therefore important for clerks to have good public relations skills. Public credibility and confidence in the court is strengthened by consistency, and one of the primary roles of the court clerk is to ensure consistency in the activities of the tribal court.
At this time, many tribes in Alaska are adding the duties of tribal court clerk to existing job positions in tribal offices, such as tribal administrators or tribal child welfare workers. The tasks of the tribal court clerk are many, and this arrangement works better when there is a low tribal court caseload than a large one. As tribal courts develop in Alaska, tribes will increasingly seek funding for tribal court clerk positions and for automating tribal court case management to make those jobs easier.
The duties of the tribal court clerk vary from tribe to tribe, but might include:
Receiving petitions and complaints filed with the tribal court
Answering the phone for the tribal court
Handling tribal court mail
Keeping court case files in order and updated
Maintaining the filing system of the court
Setting court dates and keeping a court calendar
Writing and sending notices of hearings
Setting up teleconference equipment for hearings when necessary
Attending hearings, operating a tape recorder, and taking minutes of court hearings
Preparing case files for judges to review and use during hearings
Reminding judges of hearing dates and dates when things are due
Making certified copies of court documents for other governmental agencies
Drafting tribal court orders for judges to review and sign
Making copies of court orders and distributing them to parties
Being a public relations person for the tribal court
Keeping judges updated about cases, petitions, complaints and hearings
Accepting fines and making out receipts, and keeping records of tribal court finances
Being responsible for the tribal court seal, certification stamp, date stamp, and keys for locked files
Attending training on a regular basis to sharpen skills and to stay informed of new information
Tribal court clerks have an ethical responsibility to avoid letting the personal views or relationships affect the activities of the court, and a duty to maintain the confidentiality of tribal court cases. Before assigning a clerk to duty, the tribal court might request the clerk to state or sign a statement such as the following:
I ___________ will perform the clerk's duties faithfully and honestly. I will not let personal views and relationships affect the performance of my clerk duties. I will not attempt to influence the course of the court proceedings, and I will not reveal confidential matters that the clerk learns in the course of official duties.
Tribal Court Records
There are many reasons why it is essential for tribal courts to keep good records. Records are necessary for the purposes of decision making by judges, for reviewing and possibly rehearing a case, for certification to other agencies or governments that a particular tribal court decision or action has taken place, and for cases that are appealed. Without an accurate record, an appellant cannot properly prepare an appeal, and the appellate court does not have the information it needs to make a good determination about what actually happened. A court of record is a court that records its proceedings and keeps complete records filed of each case. By becoming a court of record, tribal courts become capable of interacting and coordinating with other agencies and courts.
A court of record does not necessarily have to tape record hearings as long as thorough notes are taken, but tape recording is recommended. Using simple cassette tape recorders with counters to record hearings, and file cabinets to store hard copies of case files works for small court systems with low numbers of cases. Larger courts use more elaborate tape recorders and internet based systems for recording hearings. They also track cases through special computer programs designed specifically for court use, and use microfiche or computer servers in cyberspace for storing information. Specialized court case management computer programs can get very expensive. Eventually tribal courts in Alaska will use more specialized recording devises and computer programs and such, but when the caseload is small, Microsoft word, a tape recorder with a counter, and a locking fireproof cabinet will serve the needs of a court of record.
Recording hearings: Recording hearings with cassette tapes provides a permanent record of hearings for the tribal court and a record for the tribal court of appeals to review. It is important for the tribal court clerk to take notes during hearings to assist in identifying who was speaking on the tape, and to note any other relevant information that the tape recorder could not capture. It is handy to have a tape recorder that has a counter. The clerk can make notes using the counter to identify main points of the hearing, which makes it easier to retrieve information later from the tape. Following the hearing, each tape should be identified by the case name and number, and by the date. Tapes should be securely stored in a permanent file.
Case Files: Each case should have its own file. The case files should be organized in a consistent way to make it easier for the clerk and judges to find papers quickly. Some tribal courts use different colors of labels or files to more easily identify different types of cases. Case files are often kept using a two hole punch and metal fastener at the top of the file folder. One logical way to organize case files is to file all documents in chronological order with the most recent document on top. This eliminates the need for removing all documents in the file every time a new one is filed. Files organized this way are read from the back to the front.
The types of things that go into the case file are any petitions or complaints filed in the case, statements of mailing and return receipts, tapes of hearings, written minutes of hearings, copies of all correspondence (letters, memos, emails), copies of documents such as birth certificates and medical records that apply to the case, documentation of payments such as foster care that have been made, and case notes. Case notes are made by the clerk or other court personnel that note details of conversations and contacts with people about a case. They might include the date, who was contacted and how, specific information exchanged, and any other significant details such as if the person was very angry or intoxicated.
Confidentiality of Records: It is very important to maintain confidentiality and control over records by keeping them securely locked up. Securing actual papers (hard copies) is one issue, and securing computer files on a hard drive or stored on an offsite server location is another. One rule of thumb is to keep hard copies behind at least two locks, such as a locked fireproof cabinet inside a locked room. Fireproof storage is the safest for hard copies of records that may need to be accessed far into the future such as those involving adoptions. Computer files can be protected by computer security systems and by keeping computers themselves in locked offices. A policy should be made on how long to keep various kind of records, but some records such as adoptions should be kept forever. As extra insurance that these important documents will not be lost, copies may be sent out of the village to non-profit Native organizations, the BIA, or some other secure place for permanent storage.
Most State and federal court files are considered public record and may be reviewed by any interested person. However, it is advisable that the tribal courts establish some guidelines and procedures about which files are confidential, who may review confidential files, and when and how this can be done. Additionally, in order to avoid lost case files, the tribal courts should set guidelines for lending, specifying whether or not files may be removed from the office, under what circumstances, and by whom.
Case numbering: Each tribal court case needs a number for identification, and there are many systems for numbering cases to choose from. One easy system for courts with a low caseload is to use the year and then number each case in sequence as they come up. For example, the third case of 1990 would be 90-3. A master list with case numbers and names of people involved may be kept for each year and filed in the front of the case files. Some courts use an alpha-numeric case numbering system. The type of case is indicated in letters, the year the case began is indicated, and a sequential number for each case filed in a category is given. For example, JV00-35 would be the 35th juvenile case filed in 2000.
A court calendar (sometimes called a ‘docket’) is an essential way to keep track of hearing dates and deadlines for sending notices and such. Tribal courts with very low numbers of cases may use an ordinary wall calendar for this task, but there are several easy computer calendar programs that may be used. The clerk usually is the person designated to keep the court calendar current. The clerk is also typically responsible for reminding judges in advance of any dates on the calendar in order to permit them to prepare and schedule their time.Tribal Court Forms
The use of forms is essential for consistent and effective tribal court operations. A good rule of thumb is to use forms that are as simple as possible but still accomplish what needs to be done. They should be clear and easily readable, as well as legally sound. There are lots of available sample forms for tribes to review and choose from, and there is no need to design a set of tribal court forms from scratch. However, forms from another tribe or source need to be modified to fit the particular needs and rules of each tribe.
Some sources for court forms include:
Tanana Chiefs Conference, Tribal Government Services 907-452-8251
Sample tribal court forms from Wisconsin Tribes compiled by Wisconsin Judicare Inc.: internet address: http://www.judicare.org/tctforms.html
Tribal Law and Policy Institute, California, 323-650-5467
Other tribes that are willing to share their forms
Some case management software programs include automated court forms that can be modified by the court buying the software.
State court forms
Tribal Court Seals, Certification Stamps, Date StampsThe primary purpose of court seals and certification stamps is to verify that documents are authentic and are filed, issued, or received by the court. The court seal is the official seal of the court and is placed on original documents near the signature of the judge or court clerk to signify authenticity. Tribal court seals may be embossers that press a pattern into paper or an ink stamp, and each tribal court should have one specifically made with their court name on it. A certification stamp may be used on any copy of a document that needs to be authenticated. It may be dated and signed and the court seal placed over it. The date stamp is important for indicating the date and time when an item was received and filed. Most tribal codes have time frames for responses and appeals and such to be filed. Being able to verify the date the documents were received is important for the preservation of jurisdiction. In other words, if an appeal has to be filed within 20 days of a final judgment, the court only has jurisdiction to hear those cases filed within the 20 days. Date stamps are important. Court seals and stamps are inexpensive and can be ordered through a printing company. One such company is Graphic North on the Old Steese Highway in Fairbanks (452-1907).
Financial Affairs of Tribal Courts
Tribal courts all over the nation are under funded, but particularly the ones in Alaska. Most tribal courts in Alaska are served by volunteer judges, with tribal court clerk duties added to a tribal position that is likely already overextended. The positive side of using volunteer judges is that people are serving the tribe in this way because they really care about the health and welfare of their fellow tribal members. They make their decisions from the heart, viewing it is a community service that has rewards other than dollars. On the other hand, it takes money and food to live in this world and volunteers sometimes have to forgo tribal court service to attend to paid jobs and subsistence activities. A meeting fee or small stipend for tribal court judges could prove very helpful for making tribal courts run more smoothly. Also, there is always a financial need for equipment, office supplies, copying and postage for the tribal court, as well as for on-going tribal court training for judges and staff.
Most tribal courts in Alaska operate out of tribal council offices, depending almost entirely on them for space to hold hearings, a place to keep records, for office supplies and telecommunication expenses, and for staff to fill the role of tribal court clerk. Alaska tribes seem to be ‘last on the list’ for tribal court funding through the Bureau of Indian Affairs, but eventually it is likely that the Bureau will provide some funding for Alaska tribal courts. Many tribes in Alaska apply for and receive grant money for training and development of tribal courts through various branches of the Department of Justice. That type of funding is temporary, but is very helpful for getting tribal courts started and providing training. Tribal courts may generate some money from fines and fees, but far from enough to cover the expenses of the tribal court. Although tribal courts in Alaska are far from having adequate funding, an accounting system specifically for handling finances for the tribal court should be established.
There are many considerations for designing a sound tribal court management system that is adapted to the particular needs and resources of the tribe. A basic rule of thumb is to keep the system as simple as possible and still get the job done, yet make it flexible and adaptable enough to accommodate change and growth into the future. Tribal court clerks are the cornerstones of any court management system. They are essential for managing the day-to-day operations of tribal courts, for helping the court be a court of record, and for insuring consistency.
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