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CHAPTER THREE

Tribal Court Structures

“In developing and operating tribal courts there is much potential for enhancing Native culture and practicing traditional ways. But there is also a danger of damaging them. When designing and operating any part of a tribal government, incorporate traditional values and practices when appropriate and possible, and avoid structures and procedures that are harmful to them. Give unwritten traditional law room to breathe.”

Lisa Jaeger

Tanana Chiefs Conference

     Introduction

     Separation of Powers
     Tribal Court Structures
     Structures of Tribal Courts and Conflicts of Interest
     Appellate Court Structures
     Intertribal Court Structures
          Northwest Intertribal Court System
          Southwest Intertribal Court of Appeals
     Tribal Youth Courts and Other Specialty Tribal Courts
     Conclusion

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

Introduction

Throughout ancient times, Alaska Native people maintained social order under traditional laws, customs, and values. Mechanisms for maintaining peace, decision making, and resolving disputes varied from tribe to tribe, depending on cultural, geographic, and historical differences. In modern times, the adaptation of traditional customs into tribal court structures and procedures is a basic exercise in tribal self-government. Maintaining social order through tribal courts allows traditional cultural practices to be applied in serving justice in the villages. It is not only a way to preserve and shape Native culture, it is also a very practical option for resolving problems in Native communities in a culturally appropriate way. Tribal courts provide forums to address lesser crimes, disputes, and situations that are not adequately addressed by the state system in many remote Alaskan communities, and provide opportunity for local emergency response.

Tribes have a wide range of options in how they structure their tribal court systems. They may be tailored to fit the needs, culture, and circumstances of each tribe. Fairness and common sense are the basic guidelines for tribes to follow in establishing tribal courts, as well as consistency with traditional values and the requirements of the Indian Civil Rights Act (ICRA) of 1968. Tribes may establish adversarial courts that are similar to state and federal courts, or establish courts that are more inline with a peacemaking style. Many tribal courts in the Lower 48 are set up as adversarial courts. That is largely because of early models that were imposed on them, and because many tribes there exercise criminal jurisdiction and incarcerate people, which calls for that style of court. Tribal courts in Alaska tend to be developing more along the peacemaking lines, using hearing styles and justice circles that are less formal than adversarial courts.

Tribal courts in Alaska are developing both at the village level, and at the intertribal level. There are many different ways intertribal courts may be structured, and a wide range of potential uses by the participating tribes. Intertribal courts provide the advantage of pooling resources and offering alternative tribal court forums for cases where the level of conflict of interest in a village may be high. They also may be used for appellate courts, or as courts of advice.

Separation of Powers

Governments worldwide generally have three basic functions-executive, legislative, and judicial. In the federal and state governments, these functions are served by a head of state and departments, a law making body, and a court system. Each of these bodies of government has a certain amount of power, but some controls over that power are given to the other bodies. Both the federal and state governments separate these functions in order to provide a check-and-balance system to prevent any one portion of government from becoming too powerful.

When the basic functions and powers of government are separated into distinct bodies, it is called separation of powers. At the time of its formation, the United States government was quite different from the governments in the European countries because U.S. governmental powers were separated. The early British colonialists had suffered greatly under the tyrannical Church of England, which served as both the church and as the government. People were burned at the stake if they didn’t meet the religious standards of the church, basically an early version of capitol punishment. The colonists were anxious to set up a government that had checks and balances on its powers, and that separated religious beliefs from the government, thereby allowing freedom of religion in this country.

Although tribal governments can be structured with three distinct bodies of government with similar powers of checks and balances to the state and federal governments, none in Alaska currently are. That is not to say that there are no check and balance systems within tribal governments, because there definitely are, but none are organized in the image of state or federal governments. Tribes have a very wide range of options in structuring tribal government, and there is no requirement to separate powers. Although there are advantages of forming a separate court from the tribal council, tribal councils may legally serve all three functions.

A fundamental decision a tribe must make in establishing a tribal court is whether the court should be a separate body from the council, or if the council or some variation of the council should serve as the court. If a variation such as using one council member plus two Elders is used, powers are interestingly close to being separated. When tribal courts are totally separate bodies from councils, councils retain the power to make tribal laws while tribal courts interpret and enforce them. When councils are also courts, they have the power to both make and enforce tribal laws.

The obvious benefit of separating a tribal court from a tribal council is the creation of a familiar check-and-balance system, which is commonly recognized as promoting fairness in government. A notable disadvantage in very small villages is lack of human resources to fill these leadership positions. Tribes often look at cultural roots when they make decisions about separating powers. For example, some feel that separating powers is going away from cultural traditions of a single strong chief or council. For other tribes, separating powers is more naturally aligned with cultural traditions such as the division of roles and responsibilities among clans.

Tribal Court Structures

Tribes have a great deal of flexibility in how they structure their tribal courts. The tribal council itself may be the tribal court, there may be a hybrid using part of the council combined with Elders or others outside the council, or there may be a separate body to serve as the tribal court. Within these categories there are many variations. When a separate body from the council is used or others outside the council are combined with council members, judges may be appointed by the council, elected by the tribal membership, or a combination of elected and appointed judges may be used. Specific qualifications for judges may be established. In Alaska, tribal councils often function as tribal courts with the chief or president acting as the presiding judge. Obviously the qualification for serving on the tribal council is also the qualification for tribal court judges when the council is also the court. This is a common arrangement, particularly in very small villages. In larger villages there is a growing trend towards separating governmental powers between councils and tribal courts.

Tribal courts may have any number of judges, from a single judge to a panel of three or more judges. Panels of judges are by far the most common structure among Alaska tribes. When panels of judges are used, there is a pooled wisdom that can be drawn from, the decision making is spread among several people rather than placed on the shoulders of one person, and consensus decision making tends to be more accepted by tribal members.

Each tribe needs to determine what structure is going to work best for their village. Whatever the structure is should be written down, typically in the form of an ordinance although it could be written in a tribal constitution. If the structure is written in an ordinance, repeal or amendments made to that particular ordinance could be made subject to a referendum vote of the tribal members to provide extra stability to the tribal court portion of the tribal government.

Structures of Tribal Courts and Conflicts of Interest

A conflict of interest generally means that a judge is too close to a situation to be objective and fair in making a decision. Conflict of interest is an important topic to consider when determining what structure the tribal court will use because it effects who can and cannot hear a case. Conflict of interest is defined a bit differently by different courts, and in general, conflict of interest tends to be viewed differently by tribes than by state courts. In state courts one of the general conceptions is that a judge who does not know a person coming before them is going to be more ‘fair’ than if they know that person. One of the strengths of tribal court in the villages is that people generally know each other, and therefore are in a position to know how to best help the people who come before the tribal courts. However, tribal judges should not be so close to a situation that they cannot make fair decisions.

Some tribes define conflict of interest to mean that a judge should not hear cases involving his or her spouse or partner, children, siblings, parents, grandparents, grandchildren, or anyone living in the same household. First cousins are often added to this list because of the close cultural relationship between first cousins among some Alaska Native groups. The list of relatives on such a list varies from tribe to tribe depending on the size of the village and cultural relationships between relatives, but tribal judges usually do not hear cases involving first-degree relatives unless it is an emergency situation and no other judges are available. Tribal definitions of conflict of interest usually also include language about judges not hearing cases that are directly related to his or her personal financial or personal interest. In other words, if the outcome of a case could benefit them directly they should not hear the case.

Appellate Court Structures

Court systems in democratic societies typically have two or more layers of courts: courts of original jurisdiction and courts of appellate jurisdiction. Courts of original jurisdiction are courts where cases begin. Courts of appellate jurisdiction are courts to which cases may be appealed. Although there is no law that absolutely requires tribes to have appellate courts and it may or may not be in line with traditional customs, there are vital reasons why tribes establish them. Providing an appellate system for people who feel that they were not treated fairly, or that tribal law was not correctly applied, is generally viewed as providing fairness or a safeguard for justice.

Appellate courts may be structured in numerous ways. In larger villages, it may be possible to have two independent panels of judges. One panel would hear the original tribal court cases and the other panel would be called upon to examine cases that are appealed. In smaller villages it is more difficult to fill two panels. The appellate court could be a single respected individual, a group of elders, or some other designated group. Tribes that establish a separate court from the tribal council may use the council as the appellate court. An appellate system may be established by intertribal court agreement between neighboring villages or through a system of traveling circuit judges. There is enough flexibility in fulfilling an appellate function to allow villages to select the most appropriate system to suit each of their unique circumstances.

Appellate courts are usually set up so that they become involved in a case only if asked, and only if the appellate court feels there is enough reason to review a case on appeal. Appellate courts are usually not set up to retry cases. Appellate courts review the case records from the original tribal court. From those records, appellate courts decide if there was a procedural mistake or if there is evidence that the court was unfair in some way. If the appellate court believes that the original tribal court may have made such mistakes from reviewing the records, they hold a hearing to determine if a mistake was made, and if so, what should be done about it. Providing tribal appellate courts with records to review is one of the reasons why it is important for tribal courts to keep good records of all things filed and of all proceedings.

An appellate court may refuse to hear a case if there is insufficient evidence that the original court made a mistake or was unfair. If the appellate court feels that there is reason to question the original tribal court’s decision, a hearing is held. After such a hearing, appellate courts may decide one of three ways:

1.  Affirm the original tribal court decision. In this case, the appellate court formally agrees with the original tribal court’s decision.

2.  Reverse and remand the original tribal court decision. The appellate court sends the case back to the original tribal court with guidelines. An example of such a guideline might be that the case be reheard with one or more judges replaced.

3.  Reverse and dismiss the original tribal court case. An appellate court might make this decision if it decides that the original tribal court lacked jurisdiction in the first place to hear a case, or, if the original tribal court made a serious error in its procedure.

Establishing some kind of appellate court process is advisable for all tribal court systems because they are generally perceived as adding an element of fairness by providing a chance for a second opinion on the fairness of the original court. Appellate courts provide a chance for people to challenge the procedures and decisions of original tribal courts. Also, having a tribal appellate court may help fend off challenges to tribal court decisions by state courts.

While it is recommended for tribal courts to have appellate courts as part of their system, the experience in the tribal courts of the Interior is that there are few requests to appeal tribal court cases. Most of the tribal courts in the Interior have appellate courts established by tribal ordinance, but few have been put to use. However, as tribal court activity increases into the future, requests to appeal tribal court cases will likely increase as well.

Intertribal Court Structures

For a wide variety of reasons, tribes throughout the Lower 48 and Alaska have set up intertribal courts. Some of the intertribal courts in the Lower 48 are quite well established and formalized by written agreements and governing documents. The Northwest Intertribal Court System and the Southwest Intertribal Court of Appeals are such examples. Some tribes in Alaska are developing intertribal courts. Many have informally set up intertribal courts on a case by case basis where children in a particular case are members or eligible to be members of two different tribes. A great deal of interest is being expressed among Alaska tribes to establish more formal and permanent intertribal courts. This may happen between two neighboring tribes, between several tribes with close geographic and/or family ties, or between tribes in a large region. Because of sovereignty issues and politics in and among tribes, it is critical that the desire for and design of intertribal court systems come from within the tribes themselves rather than be externally imposed in a blanket fashion along ANCSA Corporation or other such boundaries.

There is almost an endless variety of ways intertribal courts may be established and utilized, all of course with pros and cons associated with them. Among the options are:

A. An intertribal court could be the only court for two or more tribes.

B. An intertribal court could be used by member tribes as an appellate court, with various options available for member tribes (i.e. the Southwest Intertribal Court of Appeals).

C. An intertribal court could be set up as a single office with a court clerk, filing system, technical and financial services, but each tribe has its own judges. In other words, the tribal courts are sharing a clerk, filing system, and office resources.

D. An intertribal court could be a pool of judges that member tribes could draw from.

E. An intertribal court could be set up so that disputes between people from different villages, or cases where children are eligible for membership in more than one village, could be heard at that court.

F. Intertribal courts may be set up on a case-by-case basis as they arise.

The Northwest Intertribal Court System and the Southwest Intertribal Court of Appeals are great examples to study. They both are intertribal courts but are designed differently and serve some similar, but some differing functions.

Northwest Intertribal Court System:

In this system, each member tribe contracts for the services needed. Services offered by the system may include:

In this type of system, larger tribes with long established tribal courts and appellate services may only need financial support for court clerks, judges and accounting and training services. They may also need mediation services in inter-tribal disputes. Smaller tribes may need to have full service, for example, hearing judges and clerks from other tribes to decide the few cases that may arise. These arrangements would be made as the member tribe chooses.

Southwest Intertribal Court of Appeals:

The Southwest Intertribal Court of Appeals is intended to serve Pueblo and tribal governments and their court systems by providing an impartial forum for the review of Pueblo and tribal court decisions. The Southwest Intertribal Court of Appeals also provides judicial support services that respond to the individual needs of member Pueblos and tribes. The support services include:

In this intertribal court, any grant of appellate jurisdiction by a tribe to the Southwest Intertribal Court of Appeals would be by Pueblo or tribal council action and all limitations are clearly defined by each tribe.

Tribal Youth Courts and Other Specialty Tribal Courts

The state and federal court systems are actually many courts and court systems that are linked together in some fashion. Cases begin in a lower trial court and sometimes work their way up to a higher court. Some courts are courts of general jurisdiction that hear cases on a wide variety of subject matter, while others are courts of more specific jurisdiction that hear only certain kinds of cases such as juvenile or tax cases. Tribes have the option to set up various levels and types of courts as well. Some tribes have one court of general jurisdiction that handles all types of cases, while others set up some specialty tribal courts to hear certain kinds of cases. Whenever more than one court is set up, the exact relationship between the two courts should be made very clear in tribal ordinances.

In state court systems, juvenile cases are usually handled differently than adult cases and are often heard by special juvenile courts. These special courts may be a branch of the regular court system, or be a special program staffed and operated by youths themselves. Youth courts are becoming more and more common throughout the country and among the tribes. Youth courts in the urban areas are generally patterned after the adversarial style of court that the state courts use. In essence, juveniles are being judged by their peers, and those running the court gain an early learning experience about running an adversarial courtroom. These youth courts are actually a diversion program away from the regular court system.

Tribes have more options for how they structure and operate their youth courts. They may make them an actual part of their tribal court system instead of making them simply a diversion program. Tribal youth courts may be established as a branch of the tribal court. Sentencing may involve culturally relevant and traditional activities. It is important to have the structure, procedures, and types of cases the youth court can handle in writing, as well as the relationship of the tribal youth court to the regular tribal court.

Conclusion

Tribes have a very wide range of options in how they set up and operate their court systems. They may separate their powers of government and form a tribal court separate from the council, allow the council to also be the tribal court, or establish a court using some council members combined with others. They may set up one court of general jurisdiction to handle all cases, or set up specialty courts to hear certain kinds of cases. They may or may not have an appellate court, or may or may not be part of an intertribal court. Having such a wide range of options allows each tribe to design a tribal court system that best fits the needs, culture, and resources of that particular tribe. There are pros and cons to just about every choice or style of tribal court structure. In developing and operating a tribal court there is much potential for enhancing Native culture and practicing traditional values, but there is also a danger of weakening these things. Careful consideration of what tribal court structure is most suitable should be made by each tribe.

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