November 2002

Just Like a "Real" Court! 

by Judges Edythe Chenois, Jane M. Smith and Cynthia A. Jordan

"You operate just like a real court!" exclaimed the attorney on the other end of the line. The tribal court administrator had just finished explaining the procedure for being admitted to practice before the tribal court. "Of course," thought the court administrator, "that's because we are a real court!"

The tribal court is the Colville Tribal Court in north central Washington, on the Colville Indian Reservation. This conversation, which took place 18 years ago, occurred frequently back then. Unfortunately, it still happens with regularity in 2002, because many attorneys do not have the opportunity to learn about how tribal courts work until they find that the proper jurisdiction for one of their cases is in tribal court. The purpose of this article is to assist WSBA members in familiarizing themselves with modern tribal court.

The judicial systems that exist on many reservations today have little in common with traditional Indian methods of dispute resolution. Rather, today's tribal court has its roots in the externally imposed Anglo system for "keeping order" in Indian country. In 1883, the commissioner of Indian Affairs authorized the creation of Courts of Indian Offenses. These courts operated under rules and regulations developed by the Bureau of Indian Affairs, and were run by the government's Indian agents. Although many Indian agents appointed Indian judges, the agent had to approve all court decisions, which clearly limited the courts' independence. These courts later became known as "CFR courts," because rules relating to them can be found in 25 CFR pt. 11. Under the Indian Reorganization Act of 1934, tribes were given the opportunity to draft their own constitutions and laws, and set up their own court systems — modern tribal courts. These courts operate under the residual sovereignty of the tribes, rather than as agencies of the federal government.

Currently there are more than 360 fully operational tribal courts throughout the continental United States and Alaska. They range in size from very small to very large, and they handle everything from the theft of lawn chairs to multimillion-dollar construction-project disputes. Some tribal courts are constitutional courts, while some are statutorily created by tribal councils, which are the governing bodies of the tribes. Each tribe is unique and therefore so is the court system of each individual tribe. It is important to remember that what is appropriate for one tribal court may not be acceptable in another. A smart practitioner would be well-advised to take the time and make the effort to investigate the tribal court they wish to practice in prior to actually making an appearance. It will be well worth the effort in the long run.

First of all, due to the inherent sovereignty enjoyed by the tribes, each tribe has its own set of statutory authority and regulations, along with its own court rules. Some coastal tribes may have extensive and complex fishing laws, which may not be found in many inland tribes. Big game may not be as big of an issue for suburban tribes as for rural tribes, so suburban tribes may not have extensive big-game laws, but may have complex traffic laws. The laws of each tribe reflect the values and traditions that the tribe has determined are most relevant to it.

Clearly, you must know a tribe's law before you can adequately represent your client in tribal court. Although it is simple logic, attorneys new to tribal court often fail to do their homework. Many an attorney has made the mistake of quoting state or federal statutory or case law while presenting a case in tribal court, and has lost on an issue, or maybe even the entire case, because tribal law differed significantly from its state or federal counterpart. Generally speaking, state and federal case law is persuasive authority only, except where the federal courts of appeal or the U.S. Supreme Court has issued an opinion dealing directly with tribal matters, or Congress has enacted a statute dealing specifically with a tribe or tribes.

How does an attorney seeking to practice in tribal court research tribal law? First, obtain a copy of the tribe's law-and-order code and study it carefully. Most law-and-order codes will have a section listing applicable law and the order in which various types of persuasive authority will be considered. A tribal court may look first to tribal law; then tribal case law and custom; then state or federal law and case law. In some areas a tribe may, without waiving its sovereignty, incorporate sections of the applicable state statutory law into its own codes.

After obtaining the tribal code, the next step is to determine the availability of the tribe's own court decisions. For example, the Colville Tribal Court has an extensive collection of case law from both the trial court and the court of appeals. It has been organized and is available on disk. There is even a citation system which can be used to check on the status of the cases.

Alternatively, the largest repository of tribal case law is the Indian Law Reporter, published monthly and now available at law libraries. Some tribes have their decisions online. The FindLaw search engine (http://www.findlaw.com/) is one place to start your online search. If you are unable to find case law on point from the particular tribal court that your case is in, look to the tribal case law from other tribes. While case law from another tribe is persuasive rather than binding authority, just like most state and federal case law, it is only natural that tribal judges are more likely to be persuaded by case law from a similarly situated tribal court.

The next issue that a successful tribal court practitioner must address is admission to the tribal court bar. The requirements to practice law vary from tribe to tribe. Most tribal courts require some type of bar fee, ranging from $10 to $150 or more; many tribes are now requiring bar examinations. Don't worry — the exams usually can be completed in a couple of hours.

To prepare for the exam, in addition to specific tribal laws, you should have some knowledge of general Indian law and the content of major cases affecting tribes. Recommended reading would be Felix S. Cohen's treatise Handbook of Federal Indian Law (1982); William C. Canby's American Indian Law in a Nutshell (1981); and The Rights of Indians and Tribes by Steven L. Pevar, published by the American Civil Liberties Union. These sources will give you an overview of Indian law to better enable you to understand the setting in which tribal courts exist and maintain their jurisdiction. Once you have successfully completed the bar exam, if required, you will be asked to sign an oath affirming that you will faithfully obey the laws and ethical standards of the tribe.

Having obtained the ability to practice in tribal court, and having determined the applicable law in your case, you are now ready to head for the courthouse door. Be advised that in tribal courts, as with state and federal courts, the clerk (or administrator) is usually the heart of the system. If you have questions, most of the time the clerk or administrator will be able to give you an answer or send you in the right direction. They won't do your job for you, but are usually willing to help out, especially if it makes their job easier. "Please" and "thank you" are very welcome, since court clerks don't hear this a lot. Find the fine line between "needy" and "trying to be prepared" and stay on the correct side — it will make the system run smoother and your experience better. The court clerk or administrator is also an excellent resource for information on tribal customs and traditions. If they can't help you, they usually can tell you who can.

In addition to learning about proper procedures from court clerks or administrators, the successful tribal-court practitioner needs to know that tribal courts operate on a great deal less money than their state and federal counterparts. Though most tribal courts have computer access, many are not yet on the Internet or are only beginning to explore the technology. While it may be easy for you to e-mail information, it might not be easy for court staff to download or process it. Find out the capabilities of each court you are practicing in front of, including their rules, then follow them to the letter. If faxing is an option, find out when and how you are allowed to file information.

What does the successful tribal-court practitioner need to know about tribal judges? Many of these judges are some of the sharpest attorney and lay judges you will ever have the opportunity to practice before. Often, they have been on the tribal bench for many years and know the applicable law inside and out. However, because most tribal courts are overburdened and understaffed, tribal judges often need to move a long docket along as quickly as possible. For this reason, tribal-court judges appreciate presentations in plain English, without a great deal of jargon or legalese. The judges exhibit a high degree of common sense and practicality, and they do not suffer grandstanding easily. They expect attorneys to come before them fully prepared and with a respectful attitude toward the tribal court and court staff.

Many tribal-court judges do not have access to stocked law libraries. Often, tribal court judges don't have law clerks, so any research has to be conducted by the judge at a law school or county law library. If you can submit case law with your documents, do so. It helps speed up the review process, and the judge will appreciate the extra effort. Finally, and maybe most importantly, the successful tribal-court practitioner needs to know that being a lawyer whose practice takes him into tribal court has both a rewarding and challenging adventure ahead. Many attorneys believe that tribal courts are the best to work in, because they are client friendly, and the system is faster and easier to negotiate. Moreover, in tribal court the law often is still in the process of being developed, and litigants and their attorneys may be in a position to have a significant impact on tribal law. In addition, as noted above, tribal court resources are limited, so tribal courts have had to find alternative ways to settle disputes and punish offenders. Most of the time the remedy focuses on rehabilitation and healing rather than solely punishment and money damages. A smart practitioner will be flexible and learn to adapt his way of thinking, rather than remain rigid in his approach to cases.

This latter fact may explain why tribal courts have many dedicated staff members. They are not in their jobs for the money or the prestige. They are there to help their people, whether they are Indian or non-Indian. Most love their jobs because the tribal-court environment can be so varied and challenging. Many of the staff have risen through the ranks and know the system inside and out. They wear many hats and perform many functions. Most have a great sense of humor, although it may sometimes get lost in the cultural translation. Don't worry — they aren't laughing at you — they're laughing with you!

Yes, tribal courts are just like "real" courts. You are expected to know their laws, respect their systems, and help bring harmony and order to their people. Not everyone is cut out to practice before a tribal court, but if you are one of the lucky ones, you are a very special person indeed. We thank you for your contribution, salute you for your dedication, and welcome you to our family.

---

More Information

• Indian Law Section