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CHAPTER SEVEN

Judicial Ethics

You shall appoint Judges and officials throughout your tribes to administer true justice for the people.…..You shall not distort justice, you must be impartial. You shall not take a bribe, for a bribe blinds the eyes of the wise and twists the words even of the just.”

Deuteronomy 18:20

     Introduction

     Conflicts of Interest
     Confidentiality
     Respectful Behavior
     Sample Ethics Ordinance
     Traditional Tribal Values and Ethics
     Conclusion

© Tanana Chiefs Conference, Inc. and Lisa Jaeger
 122 First Avenue, Suite 600
 Fairbanks, Alaska 99701
 (907)452-8251

Introduction

Tribal court judges have a tremendous responsibility for the tribal membership. Tribal members put great trust in their officials to guide the community, and especially to protect the well-being of the children. In order to comply with trust given to them, and to provide role models for other members of the community, tribal judges are expected to live their lives with high ethical standards.

Tribal judges are in a unique position to improve the legal systems of the tribes. Through their work, actions, decisions, and integrity, justice may be improved. Combined with other programs and efforts in the village to promote wellness, tribal courts are in a position to encourage healing of offenders, victims, families and the whole village.

The strength and effectiveness of any court system rests upon the respect given to it by the members of the community. Judicial ethics are a critical element in preserving that respect.

Conflicts of Interest

Judicial ethics are closely tied with fairness. People who come before the court must perceive the court as being fair. In order for judges to be perceived as being fair, there are certain cases that they must excuse themselves from hearing. Those cases are where the judge has a conflict of interest as defined by tribal law. Conflict of interest is defined differently by state, federal, and tribal court systems, and is subject to a wide range of interpretation. But the basic idea is that judges remove themselves from hearing a case when they cannot be fair. Generally speaking, such conflicts include cases involving immediate family members (first degree relatives), in cases involving someone with whom the judge has a strong personal relationship, or in cases where the judge has a significant, direct financial, political or other personal interest that would prevent him or her from being fair.

Dealing with conflicts of interest is of particular interest to Alaska tribes, since the villages tend to be small and most everyone is in some way related to (or at least familiar with) each other. This familiarity is a strength and asset for tribal courts in making court orders that place children in the appropriate homes when they need protection, and in creating sentences designed to heal offenders and victims. But when a judge is too close to an individual, it is difficult to be unbiased and it is viewed by outside courts as an unfair situation.

Each tribe may make a list of the immediate family members and persons who judges may not hear cases about. Such a list typically includes spouses or significant others, persons living in the same home as the judge, parents, in-laws, grandparents, grandchildren, children and siblings. It may also include family members that are particularly significant because of cultural relations, such as first cousins in the Athabascan traditions. In very small villages, this list tends to be shorter, and in the larger villages it may be expanded. Another way this list is sometimes written is to simply say that judges may not hear cases involving their first-degree relatives.

The most important thing is that judges need to be fair by tribal values and standards. If a case involves a person to whom a judge has a relationship that would prejudice that judge’s decision, that judge should not hear that case. In addition to stepping down if a relative listed in the tribe’s conflict of interest language is a party in a case, each judge must ask himself or herself the question, ‘Can I be fair in this particular case with this particular person?’ and decide whether or not to excuse themselves from a case based on the answer.

The legal term for judges withdrawing from a case because of conflict of interest or prejudice is recusal. If a judge has a conflict of interest in a case, he or she should recuse from hearing that case. If a judge has a conflict of interest but refuses to withdraw from the case, the other judges should require him or her to withdraw. If a judge insists on hearing cases where he or she has conflicts of interest, the tribe should find a way to remove the judge.

Because many of the villages are very small and the relationships are so close, there is much discussion about establishing intertribal courts to hear certain cases. The intertribal courts could be between two villages, or between several villages in a region. In this way, the problems of conflicts of interest may be addressed while still keeping cases within the tribal court system. Tribal appellate courts may provide another way to deal with conflicts of interest, as they may be asked to review cases where judges may have been too close to a situation to be fair. In this case, the appellate court may order a new tribal court hearing with different judges. Tribal courts may also bring in judges from outside the village on a temporary basis to hear particular cases.

Language in a tribal ordinance that addresses conflict of interest might look something like this:

Conflict of Interest: Judges of the ___________ Tribal Court shall remove themselves from hearing a case involving his or her spouse or significant other, persons living in the same home, children, siblings, parents, in-laws, grandparents, and grandchildren and from any cases in which they have a significant, direct, personal financial or other interest that would prevent them from being fair.

Confidentiality

Confidentiality is another particularly important issue for Alaska villages, where there are relatively small numbers of persons and everyone tends to know everybody. Gossip about tribal court cases outside the courtroom is highly inappropriate and damages the tribal court system and the parties involved in cases. Judges, tribal court clerks, and other persons the tribal court has called to be at hearings, have a responsibility to preserve the confidentiality of tribal court cases.

The law of some tribes requires that all aspects of tribal court cases be kept confidential. Other tribes require confidentiality only of certain types of cases. Generally speaking, confidentiality is preserved in at least those cases involving children, cases that are in the process of being decided, and cases involving personal information on tribal enrollment records. In cases involving child welfare, tribal courts typically have closed court sessions where the public or tribal membership may not attend unless they are parties to a case.

In order to keep court records secure, it is recommended that hard copies of tribal court records be kept behind at least 2 locks. For example, locked inside a locking file cabinet within a locked room. Records kept on computer hard drives need to be protected with security programs, and records kept on computer servers outside the tribal office need to be stored with access restricted to those only permitted by the court as well. The court may give court records to parties to a case upon request, but that does not include miscellaneous notes that individuals may have taken during phone or other conversations about the case.

Confidentiality language in a tribal ordinance establishing a tribal court or addressing tribal court procedures might look like this:

Section ___. Oath of Confidentiality, Fairness, and Impartiality

Tribal Court Judges, the Tribal Court Clerk, any other tribal employees or other officials who participate in a case, and justice circle participants shall take the following oath of confidentiality, fairness, and impartiality prior to hearings:

“I __________________ , do solemnly swear and affirm that I will not discuss the proceedings of this case outside of the chambers of the __________ Tribal Courtroom. I shall maintain respect due the __________ Tribal Court by striving for fairness and impartiality in the tribal court proceedings that come before me.”

Violators of this oath may be subject to removal under Article ___, Section ___ of the Constitution of the __________ Tribe [or a citation from a tribal ordinance could be substituted here], subject to termination from employment if they are tribal employees, and/or contempt of court.

This or a similar oath could be administered to participants of justice circles as well as used in regular tribal court hearings.

Respectful Personal Behavior

As persons trusted with administering justice in the village, tribal court judges are expected to observe high ethical standards in their position on the court, and to conduct themselves in a way that is respectful of tribal law when outside the courtroom as well. The integrity of the court depends on respect and trust of the tribal court judges. Trust and respect is undermined when judges do not bear themselves well either inside or outside the courtroom. For example, tribal court judges should never attend a hearing or perform any of their other duties under the influence of alcohol or illegal drugs, nor should a judge who bootlegs alcohol be seated on a tribal court panel. These types of behaviors are devastating to the integrity of tribal courts.

The following is a sample ordinance concerning the judicial ethics. This sample illustrates minimum standards expected of tribal court judges. Each tribe needs to incorporate its own traditional values and standards that will be expected of tribal officials. Additionally, language establishing qualifications for judges may include background checks for felonies and other language on judicial ethics.

Sample Tribal Ethics Ordinance

Chapter ___

ETHICAL STANDARDS FOR CONDUCT OF TRIBAL OFFICIALS AND REPRESENTATIVES OF THE __________ TRIBE


Section 1. Purpose

Section 2. Ethics Guidelines

Section 1. Purpose

The _________ Tribal Council members, Tribal Court Judges, and appointed representatives are the governmental leadership of the __________ Tribe. As such, these tribal officials and representatives are role models for the tribal membership. The purpose of this Ordinance is to promote responsible leadership. All tribal officials, employees, and representatives shall follow the following guidelines. Tribal officials and representatives who violate these guidelines may be subject to counseling by tribal members, repaying per diem and meeting fees or other reimbursement, and/or removal from office. Removal shall only be considered for habitual and/or the most serious situations; removal shall be carried out according to Article ___ of the Constitution of the __________ Tribe [or referral to a section in tribal ordinances about removal may be substituted]. Employees who violate this ordinance may be subject to termination. In addition to the ethical standards in this Ordinance, tribal employees shall follow the guidelines in the __________ Tribal Personnel Policy.

Section 2. Ethics Guidelines

A. Alcohol and Drugs: Council members, Tribal Court Judges, persons employed by the Tribe, and Tribal representatives shall not attend any meetings, court sessions, workshops, or training sessions while carrying out the official duties of tribal office or otherwise representing the __________ Tribe while under the influence of alcohol or illegal drugs.

B. Travel: Whenever tribal members are on travel status and performing duties as official representatives of the __________ Tribe, they shall maintain high ethical behavior and conduct themselves in such a way that reflects positively on the _________ Tribe. Tribal members on approved travel status shall attend all meetings or work sessions relating to the activity that they are attending unless they are ill or circumstances exist beyond their control. These circumstances shall be immediately relayed to the Chief or to the Tribal Council Office.

1. Trip Reports: All persons traveling on per diem and representing __________ shall make trip reports. Trip reports shall be written, except that Elders may orally present their trip reports at a Council meeting where minutes are being taken.

C. Confidential Information: Tribal officials shall not disclose or use confidential information acquired in the course of their official duties to further their personal financial interest. Tribal officials shall not disclose or use confidential information in such a way as to give a vendor or contractor an unfair advantage over other vendors or contractors. Additionally, Tribal Court Judges, the Tribal Court Clerk, and any tribal employees who participate in court cases shall take an oath of confidentiality, fairness, and impartiality as described in Chapter ___, Section ___ of this Title, prior to every case that comes before the Court. [an alternative would be to have the oath taken once a year, or upon taking office.]

D. Economic Benefit: Tribal officials shall not accept bribes for official action. Tribal officials may accept non-monetary gifts or public awards for recognition of service.

E. Nepotism and Favoritism: Tribal officials shall not exert excessive influence or favoritism to pressure other tribal officials to alter decisions concerning employment or other benefits for their immediate family members. "Immediate family members" include spouses and significant others, children, siblings, parents, or grandparents [or some other such list].

Traditional Tribal Values and Ethics

The traditional values of the tribes are the foundations for ethics standards for the tribes. The Denakkanaaga Elders of the Tanana Chiefs Region have compiled a general list of traditional Athabascan values. Specific traditional values vary from tribe to tribe, but this list draws from tribal values of all Interior Athabascan tribes. Traditional tribal values provide excellent guidelines for judicial ethics, drafting language for tribal ethics ordinances, and tribal court decision-making. Traditional values outlined by Elders of Denakkanaaga are:

 

Spirituality

Honesty

Respect for Elders and others

Respect for knowledge

Respect for the land

Respect for nature

Wisdom from life experiences

Self-sufficiency

Hard work

Love for children

Sharing

Caring

Care and provision for the family

Family relations

Unity

Humor

Fairness

Village cooperation

Responsibility to village

Practice of traditions

Honor ancestors

 

Conclusion

Judicial ethics are a critical element in building and preserving respect, trust, and stability in a tribal court system. Each tribe must address conflicts of interest and confidentially issues in appropriate ways for that tribe. Policies must be put in place for dealing with inappropriate judicial behavior that may arise.

Tribal judges have the responsibility to provide for fair hearings. They must be communication facilitators to see that all sides of a case are heard. If a person appearing before the court is very quiet or has difficulty explaining their side of the case, a judge may question that person to help them express themselves. Judges should always reassure all parties that their points of view are being fully heard.

In addition to being a good communicator, a good judge has a lot of patience, innovation, open mindedness, decisiveness, and integrity. The role of a tribal judge is a difficult one, and one that requires support from the tribal membership to make the tribal court system successful.

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