AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES

AUGUST 11-12, 2008

RECOMMENDATION

RESOLVED, That the American Bar Association urges Congress to support quality and accessible justice by ensuring adequate, stable, long-term funding for tribal justice systems.

REPORT

The ABA has long recognized the need "to support quality and accessible justice" by ensuring "adequate, stable, long-term funding" of justice systems. While many ABA resolutions have been more specifically related to the funding of state court systems, the ABA has adopted resolutions concerning adequate funding of federal court systems. The ABA also has played a leading role in addressing legal issues concerning Native American and Indigenous peoples. The Association, however, has not yet adopted policy specifically addressing the need for "adequate, stable, long-term funding" of tribal justice systems.

Within the ABA’s Judicial Division, the Tribal Courts Council was established to recognize and enhance American Indian Tribal courts and the judges thereof. Today, many believe that Native Americans have become a neglected and often forgotten minority. Tribal Court justice systems in the United States for many are unknown, misunderstood or ignored. The same is true of the many contributions to our unique democracy made by the democratic governments of Native Americans before and during the time of the Founding Fathers of the United States of America. The ABA’s Judicial Division Tribal Courts Council was formed with the goal of refuting such misperceptions and providing a voice for tribal courts professionals within the American Bar Association.

In order for tribal courts to provide justice to the communities they serve, they must have adequate funding. Unfortunately, tribal justice systems have been underfunded for many years. The purpose of this resolution is to urge Congress to support quality and accessible justice by ensuring adequate, stable, long-term funding for tribal justice systems.

I. ABA Policy: Importance of Adequate and Stable Court Funding

The ABA has adopted numerous policies related to adequate funding of justice systems.

In 1991, the ABA’s House of Delegates passed a foundational resolution regarding adequate funding for the entire American system of justice. This resolution recognized that the highest priority of the bar and bench must be to promote improvements in the American system of justice by ensuring balanced and adequate funding for, and timely access to, the entire justice system. As tribal courts are an integral part of the American system of justice, it is clear that tribal courts also must be adequately funded.

As referenced above, in 2004, the ABA adopted a resolution regarding adequate funding of state courts. As such, the ABA recognized the need "to support quality and accessible justice" by ensuring "adequate, stable, long-term funding" of justice systems in the states and territories. Leading up to the passage of this policy, the ABA was involved in a number of efforts to ensure adequate funding of state courts. For instance, the ABA joined with the National Center for State Courts and the National Conference of State Legislatures to co-sponsor the 1995 "National Interbranch Conference on Funding the Courts." In 1998, the ABA published "Funding the Justice System: How Are the Courts Funded?" In addition, the Judicial Division and Standing Committee on Judicial Independence have created an online toolkit on state court funding that includes data on current funding levels in all fifty states, model op-ed pieces and talking points for those promoting adequate court resources. Most recently, the ABA Commission on the 21st Century Judiciary reaffirmed the importance of adequate, stable court funding to the independence of the judiciary.

Also, in 2004, the ABA adopted a resolution concerning adequate funding of federal court systems. This resolution urged "Congress and the Administration to fund the Federal Judiciary, recognizing competing fiscal demands, at levels sufficient to enable the courts to fulfill their separate constitutional and statutory duties." This resolution also sought to avert a funding crisis in Fiscal Year 2005, and, therefore, recommended that, at a minimum, the Federal Judiciary should be provided appropriations sufficient to maintain their current level of services in order to avoid further staff and operational cutbacks at a time when court workload continues to grow.

The ABA has not yet adopted resolutions specifically addressing the need for "adequate, stable, long-term funding" of tribal justice systems. However, Native American tribal justice systems are clearly part of the "American system of justice" as referenced in the 1991 ABA resolution. In fact, as discussed below, tribes are the third sovereign in the American system of justice. Tribal courts play an important role in Native American communities, confronting not only issues of self-determination and sovereignty, but also many of the same problems as state and federal courts, but often with considerably fewer resources. In fact, the federal, state, and tribal court systems are interconnected, and when tribal courts are unable to deal with tribal jurisprudence, some of these matters end up being adjudicated in either the state or federal courts, sometimes with disparate results for Native Americans.

II. The Third Sovereign in the American System of Justice: Tribal Justice Systems

Native American and Alaska Native Nations constitute a third sovereign within the American system of justice. The status of Indian tribes and tribal justice systems was articulated by Supreme Court Justice Sandra Day O’Connor when she stated the following:

Today, in the United States, we have three types of sovereign entities -- the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.

Most of the tribal courts that exist today date back to the Indian Reorganization Act of 1934. Before the Act, tribal judicial systems were based on the Courts of Indian Offenses, which were established in the 1880's by the federal Office of Indian Affairs. The Indian Reorganization Act allowed the tribes to organize their governments, to draft their own constitutions, to adopt their own laws through tribal councils, and to set up their own court systems. By that time, however, previous U.S. policies directed at Native Americans such as forced migration, settlement on the reservations, and the allotment system had wrecked havoc on customary Native American life. Consequently, in 1934, most tribes were not in a position to recreate historical forms of justice. Therefore, while a few tribes have "traditional courts" based on Indian custom, most modern reservation judicial systems do not trace their roots to traditional Indian fora for dispute resolution. Rather, because the tribes were familiar with the regulations and procedures of the Bureau of Indian Affairs, under the provisions of the Code of Federal Regulations (CFR), that model provided the framework for many tribal courts at the time of the Indian Reorganization Act.

Today, the vast majority of the more than 350 current tribal justice systems function in isolated rural communities. These tribal justice systems face many of the same difficulties faced by other isolated rural communities, but these problems are greatly magnified by the many other complex problems that are unique to Indian country. Tribal justice systems are faced with a lack of jurisdiction over non-Indians, complex jurisdictional relationships with federal and state criminal justice systems, inadequate law enforcement, lack of detention staff and facilities, lack of sentencing or disposition alternatives, lack of access to advanced technology, and lack of substance abuse testing and treatment options. Tribal courts must work to satisfy the sometimes-competing demands of those inside and outside the tribal communities. But while the challenges are enormous, "the effective operation of tribal courts is essential to promote the sovereignty and self-governance of the Indian tribes." As the Supreme Court has recognized: "Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development."

As one prominent commentator has observed: "Tribal courts constitute the frontline tribal institutions that most often confront issues of self-determination and sovereignty, while at the same time they are charged with providing reliable and equitable adjudication in the many and increasingly diverse matters that come before them" Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities.

Tribal courts preside over the very same issues state and federal courts confront in the criminal context, such as, child sexual abuse, alcohol and substance abuse, gang violence and violence against women. These courts, however, while trying to address these complex issues with far fewer financial resources than their federal and state counterparts, must also "strive to respond competently and creatively to federal and state pressures coming from the outside, and to cultural values and imperatives from within."

Tribal courts must deal with a wide range of difficult criminal and civil justice problems on a daily basis. The scope, number, and complexity of tribal court civil caseloads have been rapidly expanding. But issues related to the tribal court criminal caseloads are even more problematic. It should be noted that in most tribal justice systems, 80-90% of the cases are criminal cases and 90% of these cases involve the difficult problems of alcohol and/or substance abuse. While the crime rate, especially the violent crime rate, has been declining nationally, it has increased substantially in Indian Country. In fact, the rate of violent crime estimated from self reported victimizations for Native Americans is well above that of other U.S. racial or ethnic groups and is more than twice the national average. Tribal justice systems are grossly under-funded to deal with these criminal justice problems.

III. Consequences of Inadequate Funding of Tribal Justice Systems

There is no question that tribal justice systems historically have been under funded and continue to be under funded in most tribal communities. This chronic under funding of tribal court systems has been repeatedly documented and examined over the years in report after report. Moreover, various governmental agencies and justice organizations have repeatedly called for substantially increased funding for tribal justice systems.

A. Identification of the Chronic Underfunding of Tribal Justice Systems And Resulting Passage of the Indian Tribal Justice Act, Which Was Never Fully Funded

In 1991, the United States Civil Rights Commission found that "the failure of the United States Government to provide proper funding for the operation of tribal judicial systems . . . has continued for more than 20 years." The Commission also noted that "[f]unding for tribal judicial systems may be further hampered in some instances by the pressures of competing priorities within a tribe." Moreover, they opined that "[i]f the United States Government is to live up to its trust obligations, it must assist tribal governments in their development . . . ." The Commission "strongly support[ed] the pending and proposed congressional initiatives to authorize funding of tribal courts in an amount equal to that of an equivalent State court" and was "hopeful that this increased funding [would] allow for much needed increases in salaries for judges, the retention of law clerks for tribal judges, the funding of public defenders/defense counsel, and increased access to legal authorities."

As indicated by the U.S. Civil Rights Commission, the critical financial need of tribal courts ultimately led to the passage of the Indian Tribal Justice Act (the "Act"). Congress found that "[t]ribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health, safety and the political integrity of tribal governments." Affirming the findings of the Civil Rights Commission, Congress further found that "tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation." In order to remedy this lack of funding, the Act authorized appropriation base funding support for tribal justice systems in the amount of $50,000,000 for each of the fiscal years 1994 through 2000.

To carry out the provisions of the Indian Tribal Justice Act, Congress authorized annual appropriations of over $58 million annually for each of the fiscal years 1994-1999 with $50 million annually for base support funding for tribal justice systems. Unfortunately, however, a total of only $5 million of the more than $58 million per year appropriated was actually appropriated through 1999. Since Congress enacted the Indian Tribal Justice Act in 1993, the needs of tribal court systems have continued to increase, but there has been no corresponding increase in funding for tribal court systems. In fact, the Bureau of Indian Affairs funding for tribal courts has actually decreased substantially since the Indian Tribal Justice Act was enacted in 1993.

Without a source of stable, long-term funding, tribal justice systems are funded through a patchwork of sources at the federal level. Both the Department of Justice and the Department of the Interior supply funding through mechanisms such as grants and by funding tribally operated justice systems. This patchwork results in woefully inadequate funding. For instance, the Tribal Courts Assistance Program at DOJ administers grants to support the development, implementation, enhancement, and continuing operation of tribal justice systems. While FY 2008 funding has yet to be determined, FY 2007 funding was only $8 million for the entire country.

B. State, Tribal and Federal Leaders Document the Urgent Need for Increased Funding of Tribal Courts

In 1993, the same year that the Indian Tribal Justice Act was enacted into law, a report was issued by a group of tribal, state, and federal leaders, sponsored by the Conference of Chief Justices of the State Supreme Courts, the National Center for State Courts, the National American Indian Court Judges Association, the State Justice Institute, and the Native American Tribal Courts Committee of the National Conference of Special Court Judges of the American Bar Association. The recommendations of the report reflect a philosophy which holds that as the role, legal authority, and necessity of tribal courts becomes better understood, conflicts will give way to mutual recognition that all courts, tribal, state or federal, have a legitimate place in the American system of governance. The report also recognizes that the full development of tribal court jurisdiction and competence in matters affecting tribal governance and Indian country is a positive step for all parties, including affected non-Indians and adjacent states. To this end, one of the main recommendations of the report was that "Congress should provide resources to enhance and expand tribal court operations concomitant with their increased authority." Specifically, the report recommended that "Congress should increase the level of its funding for tribal courts."

Various federal agencies have also repeatedly recognized both the importance of tribal justice systems and the need for substantially increased funding of these tribal justice systems. For example, in 1997, a joint report by the Departments of Justice and the Interior concluded that:

Basic law enforcement protection and services are severely inadequate for most of Indian Country. This problem affects more than 1.4 million people who depend on the federal government for these services. Simply put, many American citizens living on Indian reservations do not receive even the minimum level of law enforcement services taken for granted in non-Indian communities.

In 1998, Attorney General Janet Reno stated in testimony before the Senate Indian Affairs Committee, it is "crucial" to provide additional funding to "better enable Indian tribal courts, historically under-funded and under-staffed, to meet the demands of burgeoning case loads." The Attorney General indicated that the "lack of a system of graduated sanctions through tribal court, that stems from severely inadequate tribal justice support, directly contributes to the escalation of adult and juvenile criminal activity."

Attorney General Reno acknowledged that, "With adequate resources and training, [tribal courts] are most capable of crime prevention and peacekeeping." It is her view that "fulfilling the federal government’s trust responsibility to Indian nations means not only adequate federal law enforcement in Indian Country, but enhancement of tribal justice systems as well."

C. An Historic Report by the U.S. Commission on Civil Rights Documents a "Crisis" of Unmet Needs in Indian Country, Particularly With Respect to Tribal Justice Systems

More than ten years after its report on the Indian Civil Rights Act, the U.S. Commission on Civil Rights published an historic report entitled A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country. This report put it simply: "Tribal justice systems have been underfunded for decades." Calling the implications of inadequate funding for tribal courts "far-reaching," the report stated bluntly:

As long as tribal courts are underfunded and unable to deal with tribal jurisprudence, the burden for criminal justice will continue to fall on the federal court system, where sentences are typically harsher, perpetuating a system of dual justice for Native Americans on reservations.

The report noted that Native Americans are the victims of crimes, particularly violent crimes, at rates far exceeding other groups and that they are also overrepresented in the correctional system. Law enforcement officials identified the lack of funding "as the primary factor" for these problems.

The report acknowledged both the failed funding under the Act and the "sporadic and insufficient funding in recent years" after the Act expired in 1999 as the basis for the weak justice systems often found in Indian Country. The report opined that the federal government is compromising the safety of Native people and their communities:

Because many of the DOJ’s Native American programs are not statutorily required, they are subject to the priorities of appropriators, and as a result, funding fluctuates from year to year. This fractured funding negatively affects program development and delivery. Moreover, the jurisdictional division among tribal, federal, and state law enforcement agencies, as well as that between DOJ and BIA, has resulted in a complex and uncoordinated system.

The Commission clearly saw the development and support of tribal law enforcement, tribal courts and tribal correctional programs as necessary to ensuring order and justice in tribal communities. If justice is to become the norm in Indian communities, the federal government must acknowledge that "federal funding for criminal justice systems in Indian Country remains insufficient to meet the immediate needs of these communities, much less establish a framework for eventual self-sufficiency."

D. A Recent Report by Amnesty International Concludes That the Failed Funding for Tribal Justice Systems Compounds the Pervasive Human Rights Abuses of Sexual Violence Against Indigenous Women in the United States

Even the international community has weighed in on the failed funding for tribal justice systems. Most recently, focusing on sexual violence against Native American women in the United States, Amnesty International highlighted how the failure to adequately fund tribal law enforcement and tribal court systems exacerbates these human rights violations. The report noted that Native American and Alaska Native women in the United States suffer disproportionately high levels of rape and sexual violence, yet the federal government has created substantial barriers to accessing justice. The report quoted Justice Department figures which indicate that Native American and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general and that more than one in three Native women will be raped in their lifetimes.

In its press release, Amnesty International stated that "[t]he U.S. Government has undermined the authority of tribal justice systems to respond to crimes of sexual violence by consistent under-funding." The report noted that tribal law enforcement agencies are chronically under-funded and that federal and state governments provide significantly fewer resources for law enforcement on tribal land than are provided for comparable non-Native communities. Amnesty International concluded: "In failing to protect Indigenous women from sexual violence, the USA is violating these women’s human rights." One of the specific conclusions of the report was that federal authorities should make available the necessary funding and resources to tribal governments to develop and maintain tribal court and legal systems which comply with international human rights standards.

IV. CONCLUSION

Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities. They are the keystone to tribal economic development and self-sufficiency. Any serious attempt to fulfill the federal government’s trust responsibility to Indian Nations must include increased funding and enhancement of tribal justice systems.

Respectfully Submitted,
Robyn Shapiro, Chair
Section of Individual Rights and Responsibilities
August 2008

GENERAL INFORMATION FORM

Submitting Entity: Section of Individual Rights & Responsibilities

Submitted By: Robyn S. Shapiro, Chair
Section of Individual Rights & Responsibilities

1. Summary of Recommendation(s).

This recommendation urges Congressional support of quality and accessible justice by ensuring adequate, stable, long-term funding for tribal justice systems.

2. Approval by Submitting Entity.

The Council of the Section of Individual Rights and Responsibilities approved the filing of this Report with Recommendation on February 8, 2008, during its Midyear Meeting in Los Angeles, California.

3. Has this or a similar recommendation been submitted to the ABA House of Delegates or Board of Governors previously?

No.

4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?

In 1991, ABA adopted a foundational resolution regarding adequate funding for the entire American system of justice. This resolution recognized that the highest priority of the bar and bench must be to promote improvements in the American system of justice by ensuring balanced and adequate funding for, and timely access to, the entire justice system.

In 2004, the ABA adopted a resolution urging adequate funding of state courts, in which it recognized the need "to support quality and accessible justice" by ensuring "adequate, stable, long-term funding" of justice systems in the states and territories.

Also, in 2004, the ABA adopted a resolution urging adequate funding of federal court systems. The policy urged "Congress and the Administration to fund the Federal Judiciary, recognizing competing fiscal demands, at levels sufficient to enable the courts to fulfill their separate constitutional and statutory duties." The policy also sought to avert a funding crisis in Fiscal Year 2005, and, therefore, recommended that, at a minimum, the Federal Judiciary should be provided appropriations sufficient to maintain their current level of services in order to avoid further staff and operational cutbacks at a time when court workload continues to grow.

This proposed recommendation would build upon these previous policies to support adequate funding for tribal justice systems.

5. What urgency exists which requires action at this meeting of the House?

Tribal courts play an important role in Native American communities, confronting not only issues of self-determination and sovereignty, but also many of the same problems as state and federal courts, but with considerably fewer resources. In fact, the federal, state, and tribal court systems are interconnected, and when tribal justice systems are unable to deal with tribal jurisprudence, some of these matters end up being adjudicated in either the state or federal courts, sometimes with disparate results for Native Americans. It is imperative to the entire judicial system that tribal judicial systems receive adequate and stable funding.

• Tanya N. Terrell, Director
  ABA Section of Individual Rights and Responsibilities
  740 15th St., NW
  Washington, DC 20005
  Tel: 202/662-1030 Fax: 202/662-1031
  E-mail: terrellt@staff.abanet.org