CREATIVE CIVIL REMEDIES Presented By: Michelle Rivard Parks, Associate Director, Tribal Judicial Institute, UND School of Law Ramona Tsosie, Consultant VIEWS ON THE LAW Our views on the purpose of the law Our views on what believe justice is These are the things that drive what we are doing in our court in terms of process and in terms of the remedies that we institute with respect to disputes that we are resolving 2 Views on the Law In many tribal communities the law is viewed as: Reflecting a way of life or a way of living (culture, custom & tradition) In this way law is linked to personal relationships, community and spirituality Law can define: familial ties & clanships ie. Pueblo divide into moities connected to patrilineal lines and there are established rules governing this process ; also traditional adoptions (may suspend versus terminate parental rights) Community reparation ie. Yurok fishing practices define territory; trespass into another s fishing territory can result in liability Community standards and norms 1
Law as Life cont d Focus tends to be on correcting behavior & repairing relationships Customary law derives from a long history of practice For some tribes law is derived from spirituality and hence the two cannot be separated Tribal law was often based upon community and family values, norms, and morals. Tribal Law was historically oral and not written so familiarity with the community is key; if special judges are being used there should be a means for them to gain an understanding of such matters/ histories Once you have determined the purpose for the law and once you have defined what justice means in your community you can begin to fashion creative remedies that will help to achieve or meet those definitions 5 REMEDIES 101 MONEY DAMAGES FEES DETENTION All of these are used to effectuate justice &/or force compliance with court orders Let s discuss Are these the only or the best remedies to resolve disputes &/or effectuate justice what are your thoughts? 6 2
Effective Remedies To determine whether a remedy is effective we must discuss our views of laws and justice Purpose of Law to set standards of acceptable conduct, to prohibit certain types of conduct and to exercise or regulate conduct within a tribal community Purpose of Remedy to institute appropriate measures in response to regulated or prohibited conduct Justice views might help us to fashion remedies designed to: To punish To force compliance To restore harmony and balance To make a victim whole To compensate for loss or injury Etc? How do you view justice? 7 WHY DO WE NEED TO BE CREATIVE? 8 Tribal Courts are exercising civil jurisdiction over Indians AND non-indians Tribes are somewhat constrained in terms of when we can regulate the conduct of non-indians at least on fee lands (recall Montana v. U.S) Tribal Courts are constrained in terms of when we can bring non-indians before tribal courts (in other words the Tribe s adjudicatory authority cannot exceed it s legislative authority recall Strate v. A-1 Contractors) Tribal Courts are constrained in terms of what we can do with non-indians (at least in terms of accountability through detention; recall Oliphant v. Suquamish) 9 3
JURISDICTION OVER INDIANS & NON-INDIANS Often civil cases arise in disputes involving: Domestic Violence Children & Families Divorce between non-indian and Indian domiciled il d on reservation Child custody when child domiciled on reservation Child support when child domiciled on reservation Regulation by Tribe (taxation; zoning etc.) Oftentimes these types of cases may warrant creative civil remedies 10 CIVIL JX. IN DOMESTIC VIOLENCE Civil Courts may be involved in Domestic Violence cases through: Orders of protection Child custody Child visitation Restitution Housing Others? 11 WHY BE CREATIVE? The majority of perpetrators of domestic violence against Native women are non-indian. Indian tribes have no authority to prosecute non-indians who commit crimes in Indian Country. Tribes have limited authority over non-indians in civil matters, but can use that power creatively. 12 4
Congressional Authorization /Approval to Enforce P.O. s Congressional Approval to Enforce Protection Orders VAWA 18 U.S.C. 2265 (e) Tribal courts have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands and other appropriate mechanism; in matters arising within the authority of the tribe. Enforcement of Tribal P.O. s by other states and tribes: Full Faith and Credit 18 U.S.C. 2265 (a) Any protection order issued that has complied with due process (issuing state or Indian tribe) shall be afforded full faith and credit by the court of another state or Indian tribe (enforcing court) as if the order were its own. 13 WHAT ARE SOME CREATIVE CIVIL REMEDIES? 14 EXAMPLES OF CIVIL REMEDIES IN INDIAN COUNTRY Contempt of Court (Civil vs. Criminal) Exclusion Fines and Fees Restitution n Attorneys Fee s and Court Costs Completion of Batterer Re-education Program Community Service Forfeiture Loss of Licensure or Privileges 15 5
CRIMINAL CONTEMPT (DIRECT CONTEMPT) Occurs directly before the court. Improperly challenging or ignoring the court s authority. Interference with the ability of the court to function (e.g. yelling at the judge, threatening a witness, refusing to sit down or remain quiet when ordered). Proof of criminal contempt is beyond a reasonable doubt The accused criminal contemnor has the right to counsel (but not appointed counsel under ICRA). A criminal contemnor may be jailed and/or fined as punishment. Inherent power of the court includes ability to hold all persons before the court in criminal contempt? 16 CIVIL CONTEMPT (INDIRECT CONTEMPT) Willful disobedience of a court order occurring outside the court s presence (e.g. failure to pay spousal or child support, violation of custody or visitation orders). Proof of civil contempt is by a preponderance of the evidence. No right to counsel, but there is a right to due process. May include incarceration until the individual performs a specific act(s) as ordered by the court to purge the contempt. Incarceration is meant to coerce the civil contemnor into compliance with the court s order, not as punishment. Reality: tribal court judges are often hesitant to jail non-indians. What are some other means that can be used to force compliance? 17 EXCLUSION FROM INDIAN LANDS By tribal court order By resolution of tribal council By decree from chief executive of the tribe (governor, president, chairperson, etc.) What if non-indian owns fee land within the reservation? Remedies for violation of exclusion order? 18 6
FINES AND FEES Tribal court criminal jurisdiction limits maximum penalty to $5,000 fine and up to one year of incarceration Tribal court civil jurisdiction is unlimited as to monetary amount of fines Can use fees creatively: impounded car or seized weapon incurs significant storage fees 19 RESTITUTION Compensation for loss from illegal activity Can include: Medical, dental, counseling bills Property damage/loss Lost wages Changing locks, installing alarm or other security systems, Reimbursement for transportation to and from court, etc. 20 Attorney s Fees and Court Costs Reimbursement for actual cost of counsel by victim Reimbursement to agency providing representation although no cost to victim (e.g. based on hourly pay to legal services attorney) Filing fees Witness fees (including experts) Service of process fees 21 7
DOMESTIC VIOLENCE: BATTERER RE-EDUCATION Can be on-reservation, intensive program (52 weeks etc.) At batterer s own expense Can also order counseling, in-patient (enforcement issues?) or outpatient substance abuse, alcohol, or psychiatric treatment Many Tribes have begun to work with offenders using spiritual teachings and customary teachings to re-educate offenders 22 COMMUNITY SERVICE Trash collection Public speaking to groups and organizations re. D.V. Providing labor for ceremonies (wood chopping, water hauling, etc.) Converting some/all of fines to community service (e.g. at an hourly rate) 23 FORFEITURE Due process: notice and opportunity to be heard. Can t be automatic forfeiture. Means of transportation used to facilitate D.V. can be forfeited Firearms or other weapons (Tribes can adopt own firearms codes stricter than federal code) Forfeited item can be destroyed or sold by tribe (melt down guns, sell car at auction, etc.) 24 8
LOSS OF LICENSURE OR PRIVILEGE Tribal business license Tribal employment Hunting or fishing licenses (if issued to non-members) Possession of firearm or other weapon on tribal lands privilege 25 MISCELLANEOUS Garnishment of wages issues: tribal vs. state court orders, tribal vs. off-reservation employment Attachment of property for sale to satisfy judgment 26 FINAL NOTES Codification of remedies can be helpful BUT Be sure that the remedies provisions in codes don t tie the judge in to to the point that the Judge cannot institute measures to effectuate justice? How can we do that? Include discretionary remedies provisions the Judge may in their discretion order any or all of the following. 27 9