Tribal Court Personnel
National Tribal Justice Organizations
- The National American Indian Court Judges
Association (NAICJA) is a national voluntary association of tribal court
judges. NAICJA is a non-profit corporation established in 1969. The Association
is primarily devoted to the support of American Indian and Alaska Native justice
systems through education, information sharing and advocacy. The mission of the
Association, as a national representative membership organization, is to
strengthen and enhance tribal justice systems.
- National Association of Tribal Court Personnel (NATCP), formerly
the National Association of Tribal Court Clerks, is a voluntary association of
tribal court personnel. NATCP can be reached at the following:
NATCP
c/o Hon. Robert Miller, President
National Association of Tribal Court Personnel
1920 Spring Creek Circle
Green Bay, Wisconsin 54311
Phone Number: (920) 468-8197
FAX: (920) 468-8198
Email:
RMJ143@compuserve.com
- Tribal Police Committee of the International Association of
Chiefs of Police is a voluntary association of tribal law enforcement which can
be reached at the following:
Dorothy Lameman Fulton, Chief
Navajo Department of Criminal Investigations
Post Office Box 3360
Window Rock, Arizona 86515
- Native American Bar
Association (NABA) serves as the national association for Native
American attorneys, judges, law professors and law students. Founded in 1973 as
the American Indian Lawyers Association, NABA works to promote issues important
to the Native American community and works to improve professional opportunities
for Native American lawyers. NABA strives to be a leader on social, cultural,
political and legal issues affecting American Indians, Alaska Natives, and
Native Hawaiians.
- National
Native American Bar Association (NNABA) serves as the national association
for Native American attorneys, judges, law professors and law students. Founded
in 1973 as the American Indian Lawyers Association, NNABA works to promote
issues important to the Native American community and works to improve
professional opportunities for Native American lawyers. NNABA strives to be a
leader on social, cultural, political and legal issues affecting American
Indians, Alaska Natives, and Native Hawaiians.
- Navajo Nation Bar Association (NNBA)
was established by the Judges of the Navajo Nation Courts on October 18, 1978,
who recognized a need for a properly organized bar association to regulate the
practice of law, administer bar examinations, and to promote the professionalism
of the practice of law in the Navajo Nation. For over twenty years, the NNBA has
been an association of attorneys and tribal court advocates.
- Northwest Indian Bar
Association (NIBA) is a non-profit organization of Indian attorneys and
judges in Alaska, Idaho, Oregon, Washington, British Columbia and the Yukon
Territory, which aspires to improve the legal and political landscape for the
Pacific Northwest Indian community.
- Minnesota American Indian Bar Association
(MAIBA) is a non-profit organization of American Indian attorneys and law
students, non-Indian attorneys and law students who are interested in Indian
law, and American Indians who serve as advocates, prosecutors or judicial
officers in tribal courts.
- Federal Bar Association
(FBA) has offered an unmatched array of leadership opportunities and services
for more than 80 years. This Web site provides a wealth of constantly updated
information for law students, new practitioners, experienced attorneys, and
judges from all over the country. The FBA gives its 16,000 members a chance to
meet at regional and national conferences, become active in informed discussion
of substantive law issues, assume leadership positions at the local and national
level, and network with other professionals in the field of federal law.
Resources for Tribal Court Personnel
- Tribal Court
Bench Book for Domestic Violence Cases
was produced by the Northwest Tribal Court Judges Association under a grant from
the Office on Violence Against Women
of the U.S. Department of Justice. The
Tribal Court Bench Book is a general guideline with recommendations to help
tribal courts deal with domestic violence cases. It is arranged into three
sections: Pre-Trial, Trial, and Post-Trial. The Bench Book is the result of a
year-long process to which tribal judges devoted many hours of personal time.
That effort has created a unique legal guide on domestic violence by tribal
court judges for tribal court judges.
- Tribal Healing to Wellness Courts:
The Judge’s Bench Book (Draft)
For
every difficult demanding journey, one must have a leader. In a Healing to
Wellness Court, that person is the judge. This bench book is designed to provide
instruction and practical tools for judges in their efforts to guide those
traveling on the road to wellness. It is designed to provide general guidance
for judges, examples of court procedure, and tools to assist judges in their
wellness court role. This benchbook is also useful for wellness court team
members and community leaders who are interested in designing, creating, an
implementing a wellness court program.
- Tribal
Criminal Court Benchbook
was developed by the National Tribal Justice
Resource Center and was intended to be a training guide for judges
during a trial or for a quick reminder of issues. While it tried to be
encompassing, due to the myriad of levels of criminal jurisdiction of tribal
courts, it can only be a general, if not generic, reference manual. The Criminal
Procedure Benchbook consists of three parts and twelve chapters. The first part
covers the role of the judge; the criminal jurisdiction of tribal courts;
arrest, search and seizure and extradition; and pre-trial procedures. Part II
covers the trial, including the pre-trial conference; jury trials; sentencing;
post-conviction relief, probation and habeas corpus. Part III covers juvenile
justice; traffic, hunting & fishing violations; handling high profile cases;
and last but certainly not least, domestic violence issues.
- Tribal
Criminal Court Clerk's Manual
was developed by the National Tribal Justice
Resource Center and was intended only as a guide and again, due
to the myriad levels of criminal jurisdiction of tribal courts, court clerks
should be mindful of local rules and procedures. This manual was written in
conjunction to the criminal procedure benchbook and contains 13 chapters. The
Manual covers the roles of the court clerks in criminal proceedings; general
clerk duties; initial actions & appearances; pre-trial hearings; bench
trials; jury trials; sentencing; post conviction relief, probation and habeas
corpus; juvenile matters; civil infractions; high profile cases; domestic
violence and forms.
Examples of On-Line Codes of Ethics for Tribal Court Personnel
National American Indian Court Judges
Association developed a
Judicial
Conduct and Code of Ethics
Fort Peck Court of Appeals posts
the following ethics codes:
Stockbridge-Munsee Tribal Court posts the Stockbridge-Munsee Code of Ethics for
Judges.
Proposed
Code of Ethics for Judges, Attorneys, and Advocates for the Gila River
Indian Community
Model Standards for Tribal Court Personnel (from 1978 NAICJA study)
The following model standards concerning Tribal Court Personnel were developed in 1978 by the National American
Indian Court Judges Association (NAICJA). These model standards were designed as
guidelines for self-evaluation and as a blueprint for Indian court planning. An
explanation section follows each section of the standards. As you read through
these guidelines, think about the need for Tribal courts to have strong, ethical
leaders. Do these standards provide sufficient guidelines to ensure the
integrity of Tribal courts?
"Model Standards for Indian Judicial Systems," from Indian Courts
and the Future: Report of the NAIJCA Long Range Planning Project, 124-133
(1978).
V. Judges
A. Selection
1. Minimum qualifications shall be set by the tribe for the office of
tribal judge, and he/she should be selected by a subdivision of the tribal
government or elected by the tribe at large.
a. Qualifications should reflect a preference for legal knowledge, an
understanding of the tribal code, experience in practice before the tribal
court, an understanding of tribal traditions, and customs, sufficient
education to function effectively in the courtroom, and good moral
character.
b. Other considerations which may be included in the selection of judges
could include a minimum age, being a tribal member, ability to speak the
tribal language, and residence on the reservation.
c. Qualifications should be designed to minimize the influence of
popularity or improper preferences in the selection of judicial officers.
2. Except when it is inconsistent with tribal tradition, Indian judges
should be hired.
3. The selection process must be designed to prevent personal gain or
improper influence by any person on the selecting board.
4. Salaries for judges must be adequate to attract the most qualified
individuals.
5. A salary scale and hourly wage scale shall be developed to serve as
guidelines to tribal councils.
Explanation
The image that the tribal judicial officer presents is almost as important as
the way he/she performs. A person selected or elected only on the basis of
popularity often will have no qualifications to perform the job of judge, and is
likely to engender little respect for the authority of that position. Thus,
enforcement of the law is made more difficult. A person selected for the job of
judicial officer on the basis of some preference or bias is likely to raise
suspicion of those who come before the court that they may not always receive a
fair and impartial decision. This may encourage them to seek resolution of their
problems in some other manner or to disregard any decision handed down by the
court. A screening board should be developed to evaluate qualifications of
candidates for tribal judgeship, perhaps by means of a written examination or
oral review. Maximum effort should be made to insure that only the best
qualified persons attain the office of judge. A strong preference for Indians to
be judges should exist. A national entity should develop guidelines for judicial
salaries.
B. Numbers
1. An adequate number of judges shall be retained by the tribe to insure
that the tribal caseload is handled efficiently and with enough time to allow
complete and fair resolutions of controversies.
2. An adequate number of judges should be retained to insure that a judge
will be available at all times in case of disqualification.
a. If alternate judges are used for disqualification situations, they
must have no employment which will cause a conflict of interest with
judicial duties.
b. Training should be mandatory for alternate judges.
3. The number of judges retained by the tribe should be designed to insure
that all judges will have adequate work to perform.
4. Guidelines should be developed to correlate numbers of judges with
caseload, time spent in the courtroom, and other pertinent factors.
Explanation
On many reservations the number of judges has no correlation to the caseload
or amount of work that the judge must do. Once a determination is made what an
adequate judge-to-caseload ratio is, tribes should move to align their number of
judges with this ratio. Another problem, particularly on reservations with small
numbers and close family ties, is disqualification of judges because of
knowledge of or relationship to parties in a case. Sometimes this leads to a
situation where there are no available judges within the reservation and a judge
must be called in from outside, often at a great cost and delay. Sufficient
alternative judges will help alleviate this problem. Also, the use of coalition
courts serving several reservations will work to insure a qualified judge in all
cases. Standards for disqualification should be developed by a national entity,
as should guidelines for correlating the number of judges needed with court
caseload and other factors. Guidelines also should be developed for needs for
other court personnel.
C. Tenure.
1. Judges should be subject to a probationary period when they first enter
office, during which time their performance should be reviewed periodically by
a supervisory body of the tribal government according to objective standards
set by a national entity.
2. Removal of judges during the probationary period should be subject to a
hearing process incorporating ICRA due process rights and tribal customs.
3. Once a judge has been in office for a specified period, he/she should be
removed from office only for justifiable cause as set forth in subsection D
below.
4. The term of office for a judge should be long enough to acquire
expertise in his/her job and to apply that expertise to serve the tribal
population. In no event is a term of less than three years adequate, and a
longer term is recommended.
5. The process for reelection or reselection of judges who have served a
period in office and performed adequately should be structured to give those
persons an advantage in retaining office.
Explanation
The problem of judges being removed from office after short periods of time
for any number of reasons is well known. This removal problem results in a waste
of training time and money invested by the NAICJA and its funding sources and in
a waste of the valuable experience a judge has gained during his/her term in
office. Removal of judges after short periods lessens the competency and
respectability of the office and militates against a fair, impartial and
efficient tribal judicial system. An example of structuring the reelection
procedure to give preference to experienced judges would be to have the judge
run only against his/her record, and not against challengers. A national entity
should set standards by which all judges’ performance should be measured
during the probationary period.
D. Process for removal.
1. A procedure to provide for the removal of judges must be set forth in
the tribal code, in the tribal constitution, or by resolution.
2. The procedure for removal of a sitting judge shall be fair, time
consuming, and difficult to accomplish so that judges may not be removed
arbitrarily or for political reasons.
a. A vote of tribal members or members of the tribal council should be
required before a judge is removed from office. The required vote should be
a proportion over a majority, such as two-thirds or three-quarters.
b. A fair hearing process as assured by due process provisions of the
ICRA and tribal custom shall be provided to allow the accused judicial
officer to hear the charges and to provide a chance to respond and present
witnesses and evidence.
c. People involved in the removal process with interest or bias shall be
disqualified from any aspect of the removal process.
3. A list of causes for removal should be developed and included in the
tribal code. Causes that would justify removal of a sitting judge could
include:
a. Conviction of a felony.
b. Professional incompetence.
c. Chronic alcoholism
d. Conviction of a misdemeanor involving dishonesty or acts offensive to
the morals of the community.
e. Flagrant violations of ethical standards or tribal customs (see
subsection G below).
f. Repeated failure to perform duties.
g. Failure to complete required training (see subsection E below).
4. Suspension with treatment should be considered as an alternative to
removal when appropriate. Suspension while corrective training is obtained
also should be considered as an alternative to removal.
Explanation
The vulnerability of a sitting judge due to an unpopular decision or change
in governing political power must be checked. Judges are supposed to be fair and
impartial. The possibility of quick and easy removal can influence a judge’s
decisions. On the other hand the removal process must be effective enough so
those judges who should be removed are removed. The image of the judge in the
community is important in engendering respect for the court’s authority. Thus,
for example, a sitting judge who is habitually drunk should be removed even if
his/her drinking does not interfere with judicial duties. This is because a
defendant who is sentenced for being drunk can have no respect for the court if
the person sentencing him/her is also known to drink excessively, but suffers no
consequences for it.
E. Training
Training should be mandatory for all persons holding a tribal judicial
office.
a. Training is desirable for all judges before they assume office.
b. Completion of a training course each year shall be required.
c. Training should be received in all specialized subjects over which that
person exercises authority, such as juvenile law.
d. The training received should be under a program approved by a national
entity composed of representatives of Indian organizations involved in
training.
Explanation
Training is a crucial and vital element of the qualifications of any judge,
and steps need to be taken on a continuing basis to insure that such officer has
an understanding and working knowledge of all areas of court procedure, laws,
and customs. Having a list of training programs approved by a national entity
will help insure that judges receive adequate training and that tribal councils
will have guidelines as to appropriate training for judicial personnel.
Available training courses should be utilized where such courses are applicable
to a tribe’s legal problems. A national entity should set standards for what
constitutes good training, i.e., length of course and what subjects should be
covered.
F. Independence
1. Separation of powers should exist between the judicial branch and other
branches of tribal government, and should be expressed in the tribal
constitution.
a. If tribal council members are used either as the trial court or as the
appellate court, court procedure and selection of judges should be designed
to avoid any conflict of interest.
b. Governments in which the combination of legislative, executive and
judicial functions are based on tradition should insure that fairness and
due process to protect individual members exist in judicial proceedings.
2. The tribal judges shall avoid informal contacts with the law enforcement
branch of the tribal government regarding judicial business.
3. The tribal judges shall avoid informal contacts with officials and
offices of the Bureau of Indian Affairs, and other state and federal agencies
regarding judicial business.
4. Judges shall avoid ex parte contacts; discussions with the judge shall
be held only when all parties are present or represented.
5. Judges should disqualify themselves for reasons of bias, relationships,
or interest in a case.
6. Solicitation of legal advice by tribal judges from lawyers, judges or
other persons should be limited to points of law and hypotheticals, and there
should be no discussion of the merits of a particular case.
Explanation
The presence of the tribal court as an independent and impartial fact finding
and law deciding body is important for its use and respect by those under its
jurisdiction. Recognition of independence and the removal of political pressures
from the Indian judiciary courts by state and federal courts. A tribal court
should be perceived as a distinct part of tribal government by the Indian
community. Independence includes financial independence from the other branches
of government, independence in decision-making, freedom from corrupting
influences, and preferably a physical separation of court facilities from the
facilities for law enforcement or other branches of government. Judges should be
encouraged to seek legal advice from other professionals, but caution should be
exercised by the judges to avoid improper contacts (see parts I-G and VI-B-1).
Standards for disqualifications of tribal judges should be developed by a
national entity.
G. Ethics
1. The tribe should adopt a code of ethics to insure that judges will be
subject to certain standards of conduct that will engender respect for the
position and authority of the judge and insure fair, impartial and unbiased
decisions and conduct by the judge.
2. The code of ethics should be designed to:
a. Minimize or prohibit the following:
(1) Ex parte contacts that result in outside knowledge of the incident
(see subsection F-4 above).
(2) Participation in proceedings where parties are related to the judge.
(3) Participation by judges in legislative or administrative decision
making, except where such role is traditional.
(4) Undue influence on the court by tribal officials, BIA officials,
parties, relative, etc.
(5) Obtaining outside opinions on the merits of a specific case (see
subsection F-6 above).
(6) Interference in the proceedings except where necessary to protect the
rights of the defendant.
(7) Using procedures not covered by tribal law or custom.
b. Maximize the following:
(1) The use of traditions of the tribe.
(2) The objective use of court procedures.
(3) The rights of the defendant to a fair trial.
(4) The orderly and fair nature of trial proceedings.
(5) The impartiality of the judge.
(6) The overall justice of the final outcome.
Explanation
A code of ethics is necessary for the Indian judiciary, not only to engender
a spirit of rendering fair treatment to persons under the tribe’s
jurisdiction, but to give notice to other jurisdictions that fundamental
fairness and due process exist in tribal court proceedings. Creation of a
national code of ethics for the Indian judiciary by a national entity would
operate to fulfill this purpose best. One method of monitoring compliance with
such a code would be the establishment of an ethics board by the NAICJA to rule
on alleged violations of the code. Ethical standards should be incorporated in
rules of court procedure. The ethical code that is created should reflect the
traditions of the tribe.
VI. Court personnel
A. Ethics
1.
An ethical code should be enacted by the tribe to cover the actions
and relationships of all personnel connected with tribal court operations.
2.
Conflicts of interest and preference for any party should be eliminated.
3. Confidentiality of the court’s business should be stressed, especially
in the juvenile area.
4 Court personnel should be educated about the role of the court in the
Indian community, and a public relations effort should be conducted to improve
the image of the court in the community.
B. Training
1. All court personnel shall receive available training in courtroom
procedures and operations and other duties relevant to their position.
2.
All court personnel should receive training in tribal customs and law.
3. Training should be made a mandatory requirement for holding a court
support office.
C. Legal advisors.
1.
The duty of the legal advisor is to advise the judges on points of law
and to discuss hypothetical situations.
2.
The legal advisor shall not advise the tribal judge on the merits of a
specific case.
3. The tribal court’s legal advisor should be available to judges at least
by telephone for day-to-day consultation.
4.
The legal advisor should have knowledge of tribal law and custom and
should have a working knowledge of the tribal language if it is regularly used
in court proceedings.
5.
The tribal legal advisor shall not be the tribal attorney because of
conflict of interest problems.
6. The tribal judge’s independence as a decision maker shall not be
influenced by the legal advisor.
D. Court clerks
1.
The clerk shall respect the confidentiality of the business conducted by
the court, and shall perform the duties of his/her office in a professional
manner.
2.
If there is a sufficient caseload, there should be separate clerks for
the tribal juvenile court and appellate courts.
3.
The clerk is responsible for maintaining the records of the court and
supervising the court calendar.
4. The clerk should be qualified to perform the duties of his/her office.
The clerk should have the business skills of filing, shorthand, typing and the
organizational ability to administer the office efficiently. The clerk’s
salary should be adequate to attract qualified personnel.
E.
Court reporter
1. The reporter’s function is to record all court proceedings, and to
transcribe those proceedings when required for an appeal or enforcement of a
tribal judgment outside the tribe’s jurisdiction.
2.
The court reporter should be in the courtroom whenever court is in
session.
F.
Probation officer
1.
Probation officers (male and female) shall be hired to supervise those
persons placed on probation by the tribal court, or who are released from
incarceration subject to some condition, such as enrolling in an alcohol
rehabilitation program.
2.
A separate probation officer should have social work training. An
understanding of police operations and tribal customs also is necessary for
proper performance of probation duties.
3.
Probation officers should be subject to the control of the tribal court.
a.
They should be required to report violations of probation to the tribal
judge.
b.
They should be required to report monthly on the progress of their cases.
G.
Court administrator
1.
When the size of a court warrants, a court administrator should be hired
to coordinate and administer the tribal court. Otherwise, the functions of the
court administrator can be combined with the court planner of, if necessary, the
chief judge or clerk.
2.
The tribal court administrator should have the following
responsibilities:
- Hiring and firing of all court personnel except for the tribal
judges, under authority delegated by the chief judge.
-
Planning and administration of the court budget.
-
Oversight of all record keeping and reporting.
3.
The tribal court administrator should be required to have training in the
areas of office and court management.
H.
Court planner.
1.
The tribal court should have access to a court planner to organize court
operations and plan for the needs of the court.
2.
The planner should conduct periodic review of court operations, suggest
alterations in structure where necessary, and apply for funding for the court.
3.
The tribal court planner should have responsibility for:
a.
Planning for the court.
b.
Writing federal grant applications.
c.
The tribal court planner should be required to have training in court
management and planning.
Explanation
Adequate court personnel are necessary to insure the proper
and efficient working of the tribal court. A sufficient number of trained court
personnel would help eliminate many of the problems which now exist in Indian
courts. Individual tribal policy and customs will determine which of the
personnel recommended above should be hired. Costs can be saved by combining
some job functions when possible. An example would be combination of court clerk
and court reporter functions in one person. A position like court planner could
be merged with the job of court administrator, performed in part-time by a judge
or clerk, or shared in a circuit riding arrangement with several tribes. A
national entity should draw up model ethical standards for court personnel.
I.
Prosecutor
1.
The tribe shall hire one or more tribal prosecutors to present cases
before the tribal court.
2.
The tribal prosecutor should not be under the supervision or control of
the tribal judge, and should be able to act independently. Hiring and removal
for cause should be under the ultimate authority of the tribal council.
3.
The judge shall not act as a prosecutor.
4.
The tribal prosecutor’s offices should be separate from the offices of
the tribal judges and from the tribal defenders.
5.
Tribal prosecutors should be required to have an understanding of tribal
law and of tribal customs and traditions.
J.
Defenders and advocates
1.
Tribal defenders shall be available in sufficient numbers to represent
all persons in criminal prosecutions who request their assistance and whose
financial status prevents them from retaining counsel at their own expense.
2.
Tribal defenders should be required to receive training in advocacy if
they are hired by the tribe.
3.
Tribal defenders should be required to have a knowledge of tribal law and
tribal custom and traditions.
K. Tribal interpreter
1.
In criminal cases a tribal interpreter should be furnished free of cost
to persons who require one.
2.
Tribal interpreters must have a good knowledge of both English and the
tribal language.
VII.
Practice Requirements
A.
Professional attorneys shall have the privilege to practice in an Indian
court when they have qualified for admission to the court, and they shall be
expected to show respect for tribal law, customs and traditions.
1.
Professional attorneys shall be allowed to practice in the tribal court
in criminal cases when they have qualifies for admission and are paid by the
defendant.
2.
Professional attorneys may be allowed to practice before the tribal court
in non-criminal cases.
B.
Standards and conditions of admission to the tribal bar (attorneys and
other advocates) shall be set by the tribal court or tribal council. These
standards might include:
1.
Passage of a bar examination on tribal law.
2.
Residence on the reservation if a strong showing of tribal interest is
presented.
3.
Maximum fee schedule.
4.
Knowledge of the tribal language if it is regularly used in court
proceedings (or the attorney should be required to hire an interpreter at
his/her own expense).
5.
Minimum training in Indian court practice.
C.
Standards for removal of advocates (attorneys and others) from the
courtroom or from admission to the tribal bar for unprofessional conduct should
be adopted by the court or tribal council.
Explanation
Standards for allowing advocates to represent defendants,
such as entrance requirements, will tend to eliminate incompetent or
unethical advocates from appearing, and standards for removal will guide the
conduct of those who do appear before the court. Practice requirements also may
be used by a tribe to restrict representation by attorneys, particularly
non-Indians, as narrowly as the tribe desires consistent with the Indian Civil
Rights Act. A national entity should develop a model bar exam and set model
standards for removal of advocates from admission to the tribal bar.
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