Tribal Court Procedures
“The more we can capture the Indian way of thinking and establish those procedures, the more solid ground we are standing on.”
Honorable Robert Yazzie
Chief Justice of the Navajo Supreme Court
|Due Process and the Indian Civil Rights Act|
|Due Process and the John v Baker case|
|Beginning a Tribal Court Case: Petitions to Use the Tribal Court and Complaints|
|Procedures for Hearings|
|Options for Orders and Sentencing|
|Appellate Court Procedure|
© Tanana Chiefs Conference,
Inc. and Lisa Jaeger
122 First Avenue, Suite 600
Fairbanks, Alaska 99701
Just as tribal governments have a great deal of flexibility in the way they structure their tribal courts, they also have a broad range of options in choosing procedures for operating them. This flexibility allows tribes to operate ’people courts,’ where people can state their case, judges and parties can freely question, and all the issues concerning the case can be talked over. The court can focus on what happened and apply culturally appropriate remedies to the situation before it. Tribal courts may use lay people as judges rather than bar certified lawyers, and procedures may be much less formal than the state and federal adversarial style of courts.
At this point in time, tribal courts in Alaska are exercising civil jurisdiction, and not exercising criminal jurisdiction in terms of jail sentencing. Alaska tribes tend to be focused on handling cases where they can apply therapeutic and cultural remedies to situations rather than simply punish. The use of jail sentences triggers complex procedural requirements for tribal courts. For example, jury trials must be provided if a defendant requests it and lawyers may be in the courtroom to defend clients.
In establishing tribal court procedures, tribes blend their own unwritten and written tribal laws and values with the basic requirements of the Indian Civil Rights Act (ICRA), a federal statute that applies to the activities of all tribal governments. ICRA requires that tribal courts be fundamentally fair and provide due process. In a nutshell, that means providing adequate notice to parties of hearings, allowing parties an opportunity to speak at the hearings, and providing hearings by judges who are fair and unbiased in their decisions.
Tribal constitutions in Alaska generally have broad statements about tribal courts, simply stating that tribal governments have the power to establish them. They usually do not give specific guidelines as to how the courts are structured and operated, or limit the courts in specific ways. Most tribes in Alaska write procedural rules for their courts in tribal ordinance form.
Due Process and the Indian Civil Rights Act
The relationship between tribal sovereignty and individual civil rights was a controversial issue during the whole 19th century. The United States government dealt with tribes as sovereign nations through treaties and through the Departments of War and State, and citizenship rights as US citizens were generally denied to tribal members. In Talton v. Mayes (1896), the United States Supreme Court basically ruled that the provisions of the United States Bill of Rights do not apply to the actions of tribal governments The issue of civil rights for persons subject to the jurisdiction of tribal governments was not addressed again by the federal government for the next 60 years.
The 1960s were years filled with civil rights movements on many fronts in the United States. Civil rights were at the forefront of national issues and Lyndon Johnson was President. The black civil-rights movement, women’s movement, gay rights, and protests against the Vietnam War were all brewing. The Indian front was no exception. The red power nationalistic activism that developed among the Indian people in the 60s was composed of various groups, sometimes with competing aspirations, strategies, and goals.
Although the U.S. Bill of Rights applies to all U.S. citizens in terms of their relationship to the state and federal governments, the U.S. Bill of Rights does not apply to the conduct of tribal governments because their inherent sovereign status predates the U.S. Constitution. Congress believed that a special Bill of Rights was needed in the Indian community, and given its plenary power Congress simply made it so. Congress passed the Indian Civil Rights Act (ICRA) in 1968. Some Native factions supported the ICRA and viewed it as a safety net for persons subject to the jurisdiction of a tribe, while other factions viewed it as an intrusion on tribal government.
The purpose and scope of the Indian Civil Rights Act is to provide certain rights to all persons who are subject to the jurisdiction of a tribal government. At the heart of the Indian Civil Rights Act is the obligation of tribes to provide due process in tribal operations. The Act contains the fundamental rights in the U.S. Constitution with the exception of four. Those four are: 1) Tribal governments do not have to separate church and state; 2) Tribal governments do not have to provide free legal counsel to those who cannot afford it; 3) Tribal governments do not have to provide a trial by jury in civil cases; and 4) Tribal governments do not have to provide grand jury indictments in criminal cases. Additionally, the ICRA sets the limits on fines and jail time that a tribal court may impose, which are a maximum of 1 year in jail and/or up to $5,000 in fines per offense.
The Indian Civil Rights Act significantly affects tribal procedures in the area of criminal jurisdiction. It requires tribal courts to advise criminal defendants of their right to a trial by jury, requires tribes to write their criminal laws in clear language, honors a criminal defendant’s right against self-incrimination, prohibits the trial judge from also being the prosecutor, and requires tribes to maintain complete records of judicial proceedings. If a tribal court has sentenced someone to jail, that person has a right to appeal his or her case to the federal court system through a writ of habeas corpus (a procedure to review the legality of a person’s confinement).
The Indian Civil Rights Act also applies to tribes exercising civil jurisdiction, but the procedural requirements are not quite as stringent as for criminal jurisdiction. However, tribes exercising civil jurisdiction must operate fair tribal courts and provide due process.
There is no absolute definition of ‘due process,’ but it generally means that tribal governments must be fair in their activities, procedures, and tribal court hearings. Due process requires that tribal governments give notice of an action that is planned, and an opportunity to be heard. The opportunity to be heard means the chance to present your side of the story, and to find out the position of the other side.
Due process also means that no law or governmental procedure should be arbitrary or unfair. People must be given equal protection under the tribal definition of equal, and tribal governments must apply tribal law equally to persons in similar situations. The rights of individuals are balanced against the governmental interest, but the action of the government must be reasonable and fundamentally fair.
Due Process and the John v Baker case
In September of 1999, The Alaska Supreme Court issued a decision in John v Baker that essentially recognized tribes in Alaska, recognized tribal courts, and recognized tribal jurisdiction over child custody disputes even in the absence of Indian country. The case is extremely significant for Alaska tribal sovereignty and is a complete turnabout from earlier Alaska Supreme Court decisions.
The case began as a tribal court case involving members of two tribes, Northway and Mentasta. The issue was a custody dispute between two parents, the father from Northway and the mother from Mentasta. The children were eligible for membership in both tribes. The mother consented to having the Northway Tribal Court hear the case. The Northway Tribal Court heard the case and issued a decision that the parents would share custody, dividing the time 50-50. The father was apparently unsatisfied with the decision and filed an identical suit in State Superior Court seeking sole custody of the children. The mother moved to dismiss the state case on the basis that Northway is a federally recognized tribe and that the Northway Tribal Court had already heard and decided the case. The Superior Court denied her motion and awarded the father with primary physical custody. The mother then appealed the case to the State Supreme Court.
The State Supreme Court had last addressed the issue of tribal status in Alaska in 1988, deciding that there were no tribes in Alaska outside of Metlakatla and perhaps a few others. In light of the formal recognition of Alaska tribes by the Department of the Interior in Alaska in 1993, confirmed by Congress in 1994, and by the U.S. Supreme Court in the Venetie case in 1998, the Alaska Supreme Court recognized the validity of the list of federally recognized tribes. The Supreme Court reversed the decision of the Superior Court, recognized the Northway Tribe, recognized tribal court jurisdiction over the matter, but sent the case back to Superior Court to determine if the Northway Tribal Court provided due process.
In summary, the decision by the Alaska State Supreme Court in John v Baker (1999) basically:
Recognized the validity of the list of federally recognized tribes, thereby recognizing tribal status for Alaska tribes
Recognized the Northway Tribe and Tribal Court
Recognized jurisdiction of the Tribe, concurrent with the State's jurisdiction, over child custody disputes involving tribal children even in the absence of Indian country
Recognized that jurisdiction as a matter of comity
Sent the case back to Judge Beistline in the State Superior Court for a determination that due process had been followed.
In August of 2000, Superior Court Judge Beistline issued a decision on the John v Baker case denying comity to the Northway Tribal Court concluding that: “the Court finds that Mr. Baker did not receive the benefit of guaranteed due process protection, i.e., an impartial tribunal…” There was a problem with that reasoning though because much of the record of the tribal court proceedings had been lost, making it impossible to reconstruct what actually had happened. In reviewing the procedures of the Northway Tribal Court in the John case, the Superior Court looked at four items:
Opportunity to be heard
Impartiality of the Judges
Opportunity to appeal the case to a tribal appellate court (Although it is not clear if the state courts will consider this to be a requirement of due process.)
The case was appealed back to the Alaska State Supreme Court following Judge Beistline’s ruling, and the Supreme Court reversed his decision. The Supreme Court stated that a legal determination could not be made on due process because of a lack of records upon which to base such a determination. On August 31, 2001 the Alaska State Supreme Court sent the case to the Northway Tribal Court.
Through the John v Baker case, the State of Alaska recognizes tribal jurisdiction to hear children’s cases under the principal of comity, and that jurisdiction is concurrent with the State. If a case first starts in tribal court, the state courts will recognize that as a matter of respect and will not interfere with the case as long as the tribal court provides due process. If a party to a tribal court case believes the court did not give them due process, they may ask a state court to take the case. How a state court would view such a request depends on a lot of issues and circumstances. To guard against a state court taking such a case, tribes must provide due process.
Tribes do not have to provide due process in the exact same manner as does the State of Alaska court system, but tribes do have to provide notice, opportunity to be heard, and fair judges to a degree of satisfaction to the state courts so that their decisions will stand in the light of review by a state court if challenged. What state courts recognize in terms of due process in tribal courts will likely take some time to clarify, but it must be clarified in order for tribal court cases to be secure from challenge in state court.Beginning Tribal Court Cases
Petitions to Use the Tribal Court and Complaints:
Since tribes have a wide range of flexibility in the procedures their tribal courts follow, there are no set ways for how cases enter tribal courts. However, there are two common ways cases begin in tribal courts. One way is when a ‘Petition to Use the Tribal Court’ is filed with the tribal court clerk. This form is filed when a person wants to use the tribal court for some personal or family reason such as for settling a dispute, to protect a child or make child custody arrangements, to formalize an adoption, to ask for a protective order, or to ask the court to perform a marriage. The other way is when a ‘Complaint’ or ‘Citation’ is filed with the court by a Village Public Safety Officer (VPSO) or by other persons authorized by the tribal council to issue them. This process is used for regulating behavior that affects health, safety, and welfare of the tribal members.
A large percentage of tribal court cases in Alaska are started by filing a Petition to Use the Tribal Court form by persons who wish to use the tribal court for some specific reason. The person or persons filing the petition are called ‘petitioners.’ Petitioners fill out the form and file it with the tribal court clerk.
What happens after the petition form is filed depends on the specific request. The tribal court judges may examine the petition to determine if it is a case that they are authorized to hear under tribal law. If the situation is an emergency, such as a child is in immediate danger and needs protection right at that moment, the court clerk notifies judges immediately and an emergency hearing is held right then. For issues that are not emergencies, the clerk can schedule hearings on a more regular course of business schedule.
For emergency hearings, the court tries to notify parties the best they can, but the primary goal is to keep people safe. A temporary decision may be made at an emergency hearing, but a regular hearing should be held soon after, for which reasonable notice has been given to all parties. The principal guidelines are to provide ample notice to everyone involved, to provide an opportunity for everyone to speak at the hearing, and for the judges to be fair and unbiased. Tribal court decisions made at either emergency or regular tribal court hearings are written on tribal court order forms, and become part of the tribal court written records.
When someone allegedly violates a tribal court ordinance that regulates behavior to protect the health, safety, and welfare of the tribe, the case may be brought to the attention of the tribal court by issuing a Complaint (this might also be called a citation or some other such word) to an alleged violator and also filing it with the tribal court clerk. The Complaint states information such as what tribal law was allegedly violated, by whom, when, where, and other information relevant to the situation. A copy of the Complaint is given to the defendant and the original is given to the tribal court clerk. The clerk then schedules the case on the tribal court calendar or works with the judges to determine when the case will come before the court. A hearing should be set within a reasonable length of time (30 - 90 days for example). Scheduling practices vary between tribes. Once a date is set to hear the case, the defendant must be notified of the hearing. This may be done on a Notice of Hearing and Right to Respond and Appear form, or a form similar in nature. Mailed written notice of hearings, return receipt requested, is the best way to later verify that parties were given notice.
Procedures for Hearings
There are many styles for conducting tribal court hearings, some quite formal and others very informal. The main idea behind any style should be to provide a culturally appropriate, fair and consistent process for people who come before the court. Native language may be spoken and interpreters provided for those who may need them. Or, English may be spoken and interpreters provided for Native language speakers if need be. Commonly, when the hearing begins, the court clerk is in charge of recording the proceedings by tape recorder and note taking. Tape recording hearings is not an absolute requirement for tribal courts, but it does provide an excellent record of what took place in the court proceeding should someone later appeal a case. An alternative is to have someone take through notes, but tape recording is more complete and accurate.
Once everyone is present, a prayer might be given, a blessing by an Elder, or some other cultural way to set a tone for the court. The presiding judge may request the tribal court clerk to turn on the tape recorder, then begin the hearing by stating something like “Court is now in session, we are now on record.” Most tribal courts in Alaska use panels of judges and select one of them to preside at hearings. The presiding judge then asks for everyone in the room or on teleconference line to state their name and where they are from for the record. If a tape recorder is being used, it is important to have people say their names out loud so that their voices can later be identified if need be.
Next the presiding judge typically states what the hearing is about, summarizing why the hearing is being held, and may read the Petition or the Complaint. The presiding judge may then let each party have a chance to say what they think the court should know, and to make any requests to the court that they feel are appropriate. If the hearing concerns the violation of a tribal law, the presiding judge may ask the person to plea guilty, not guilty, or no contest. The judge may ask for reports by persons present such as village public safety officers, social workers, advising attorneys, or other witnesses. After each person speaks, the judges and parties ask questions. After everyone has had ample opportunity to speak and ask questions, the presiding judge may then announce that the court is going to turn off the tape and may ask the parties and witnesses to leave the room to allow the judges to discuss the case and decide what to do.
After making their decision, the judges bring the parties back to the room. The presiding judge may ask that the tape recorder be turned back on, and he or she then gives the decision. The judges may also give helpful advice to the parties if they choose. The presiding judge may ask a few questions to make certain that everyone understands the decision, and explains that a written copy of the tribal court order will be prepared and delivered or mailed to each party. If another hearing is necessary, the presiding judge may announce the date and time of the next hearing on the case. The presiding judge may ask if there are any final questions or comments, then close the hearing.
Options for Orders and Sentencing
One of the basic differences between tribal courts and state courts is that tribal courts have the ability to incorporate traditional tribal values, concepts, solutions, and activities in their tribal court orders. Tribal court judges in Alaska are likely to know a lot more about the persons and their families who come before their tribal courts than state judges usually know, which can be a point of strength for tribal courts. Tribal courts tend to focus on repairing problems, therapeutic solutions, taking care of victims, accountability of defendants, including all affected individuals in the process, and looking at problems in their entirety. Knowing more about the people and families involved in tribal court cases helps this approach.
The Indian Civil Rights Act basically requires that tribal courts give ‘equal protection’ in terms of equal sentences for equal crimes. In other words, if one person litters in the village and receives a fine by the tribal court of $50 while another person litters about the same amount and receives a fine of $500, that is not treating people equally. On the other hand, the more flexibility a tribal court has in tailoring an order to fit a particular individual’s circumstances and needs for healing, the more ability the court has for being a court of healing and keeper of cultural values.
Tribal ordinances may be written in a way that attaches specific fines or penalties for breaking them, such as ‘on the first curfew violation kids shall be escorted home and the incident reported to their parents or legal guardians.’ However, it is common for tribal ordinances to simply state something like ‘Any person who takes the property of another person or entity without consent, and with intent to steal or deprive the rightful owner of possession, is guilty of theft,’ and not attach a specific fine or possible sentence to the ordinance. In that way the tribal court can make an order for that particular person in that particular circumstance in an effort to help them heal and make restitution to victims and the village. A tribal ordinance that lists options for tribal court orders might look something like this:
Section ___. Sentences and Options for Orders
The Court may issue individualized Tribal Court Orders concerning child custody arrangements and other domestic relations issues. Unless _________ Tribal Code sets a specific penalty for a particular offense, the __________ Tribal Court Judges, either by themselves or through a sentencing circle format, shall determine the specific Orders for a particular case from the following options:
A. Fines: The fines that the Court may order for violation of a Tribal ordinance shall not exceed $5,000 or equivalent work sentence. The Court shall order equal fines for equal violations. Fines shall increase for successive violations of the same ordinance by the same person. The Court may garnish wages, permanent fund or dividend checks, general assistance, or confiscate property in the case of unpaid fines.
B. Community Work: Work sentences may include, but are not limited to, cutting wood for needy people or the community center, hauling water for needy people or the community center, working in the school, building maintenance or repair, hauling and pumping fuel, and cleaning up trash in the Village. The work sentences shall benefit the needy, the village residents as a whole, the elders, the victim of an offense, or the youth. Tribal Court judges shall not order work sentences that only benefit themselves personally or other tribal government officials. Work sentences shall not displace persons employed in the Village or employment opportunities. Work sentences shall be completed within 30 days unless otherwise directed by the Court.
Community work shall contribute $10.00 [or some other amount] per hour towards fines ordered by the __________ Tribal Court. Persons have the option of work sentences instead of paying a fine only if the Court specifically permits it. The __________ Tribal Court shall have the option of working with other villages if a person moves to such villages from __________ prior to completing a work sentence.
C. Banishment: An Order of permanent or temporary banishment shall only be used to protect the Tribe and/or Village residents from harm. Before banishments may be ordered, the person shall be given a Citation and a Notice to Appear in Tribal Court. A hearing shall be held that provides the person an opportunity to speak either in person or telephonically. The _________ Tribal Court shall notify the surrounding villages when banishment orders are issued by the Court.
D. Drug and Alcohol Treatment and Other counseling: The Tribal Court has the authority to order an assessment for drug and alcohol treatment and a requirement that the recommendations of the assessment be met, and other personal counseling as a sentence or as part of a sentence. The Tribal Court shall consider the cost to the person and possible waiting periods for getting in to treatment in ordering such treatment. The Tribe shall only pay such costs if funding is available.
E. Restitution: The Tribal Court has the authority to order the defendant to pay restitution to his or her victims. Such payment shall go through the __________ Tribal Court Clerk.
F. Counseling by Judges: The Judges of the __________ Tribal Court may counsel persons brought before it in a helpful spirit.
G. Traditional Activities: The __________ Tribal Court may order a person found in violation of an ordinance to participate in seasonally appropriate traditional activities such as fish camps, trapping, hunting, spirit camps, and other tribally sponsored or approved traditional activities.
Appellate Court Procedures
Appellate courts are not an absolute requirement for tribal governments to provide, however, there are many reasons why most tribes establish them. Appellate courts are generally perceived as being a necessary part of a fair court process. They are a chance for a person to challenge a court decision if they feel they were not treated fairly by the tribal court, or if they feel that tribal law was applied incorrectly. Additionally, it is more likely that state or federal courts would have opportunity to interfere with a tribal court decision if the tribe did not provide an appellate court.
Appellate courts do not retry cases that were heard before the regular tribal courts. They review records of cases when asked, to see if the original tribal courts were fair and if they correctly applied tribal law. If they think that the original tribal court may have made such mistakes, they hold a hearing to determine if a mistake was made.
After reviewing tribal court records and holding a hearing, the appellate court may decide that the original tribal court was correct and affirm the case. If the appellate court decides a mistake was made in the original tribal court, the appellate court may send the case back to the original tribal court with instructions, or dismiss the case. An example of a case being sent back with instructions would be guidelines to rehear a case by replacing a biased judge. Appellate courts might dismiss a case if the original tribal court did not have jurisdiction over the matter, or if a serious procedural flaw was made such as a search warrant was not obtained to get evidence hidden in a house. When cases are dismissed, the reason for the dismissal is written in an order of the appellate court.
Tribes have a great deal of flexibility in how they structure their appellate tribal courts. In larger villages it may be possible to have two panels of judges. One panel would hear the original tribal court cases and the other panel would be called upon to examine those cases that people appeal. In very small villages it is difficult to fill up two panels of tribal judges. The appellate court could be a single respected individual, a group of Elders, or some other designated group. Another type of appellate system might use neighboring tribal courts through an intertribal agreement, or circuit traveling judges from other villages to hear appellate cases. Intertribal courts could be set up to hear appellate cases. If such intertribal appellate courts are set up, the participating tribes should determine the specific guidelines for hearing their cases on appeal.
Tribal governments have a great range of options for establishing the procedures their tribal courts follow. A main goal of tribal court procedure is to provide a fair, consistent, and culturally appropriate process for enforcing tribal ordinances, resolving disputes, and caring for tribal children. The flexibility tribal courts have in the way they operate permit them to be informal and readily available to tribal members and others subject to tribal jurisdiction. Those who come before the tribal court should be able to simply state their case, and the judges should be able to question everyone freely. The court can focus on helping victims and offenders, the harmony of the village, the protection and welfare of the tribal members, and keeping with traditional values. If the procedure is fair and consistent for everyone involved, everyone has a full opportunity to speak at hearings, and reasonable notice of hearings is given to all affected parties, tribal court procedure will generally comply with the requirements of the Indian Civil Rights Act.
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