CIVIL JURISDICTION IN INDIAN COUNTRY

CIVIL JURISDICTION IN INDIAN COUNTRY Radisson Fort McDowell December 8-9, 2011 Tribal Judicial Institute UND School of Law The Tribal Judicial Institute established in 1993 with an award from a private foundation, the Bush Foundation the Institute has expanded to become a national institute & has delivered over 500 local, regional and national training sessions for tribal courts and tribal agencies throughout the nation. trainings have focused primarily on the design and enhancement of tribal justice systems for adults and youth. In1998, the Institute became one of the initial grantees of the Bureau of Justice Assistance under BJA s Tribal Court Assistance Program. The Tribal Judicial Institute The Tribal Judicial Institute is part of the Indian Law Center at the University of North Dakota School of Law Executive Director - BJ B.J. Jones Associate Director - Michelle Rivard Parks Additional personnel includes administrative support staff and upwards of 10 Law Clerks Personnel have hands on experience working in Tribal Courts; serving on tribal/ state court committees and serving as faculty at regional and national training events http://www.law.und.edu/tji/ 1

Services we offer. National and Regional Training on topics related to Court development and enhancement Code development resources and assistance Legal research for Tribal Judges (TJI maintains Student Law Clerks) Court assessments Provide training and technical assistance to TCAP and non-tcap tribes HISTORY OF TCAP Prior to FY 1999, primary federal source of funding for Tribal Justice systems was Department of Interior, but this funding was very limited (200 systems in existence) TCAP starts in FY 1999 with 76 grants to Tribes to plan or implement justice systems Included Tribes in States historically not funded by DOI (Alaska, California for example) Since 1999 more than 350 Tribes have been funded in excess of $45 million Example of Funding in Action Tribe who have received TCAP dollars have used the funding to: Hire essential personnel (ie. Probation officers, bailiffs, special judges) Develop court technology (database systems) Send personnel to training and skill development workshops Develop codes and ordinances Plan their court Traditional courts; adversarial courts; courts to handle specific cases such as ICWA Plan and implement alternative & diversionary court programs 2

Applying for TCAP funds Is a competitive grant program through the Bureau of Justice Assistance To access or apply for TCAP funds please watch for the solicitation announcement on BJA website or grants.gov the program is now one of the purpose areas under the CTAS grant program The announcement is usually released in November or December each year Training & Technical Assistance In addition to grant funds made available to tribes under the TCAP program, BJA has also funded training and technical assistance initiatives to support tribes who are attempting to address issues of tribal justice system development Technical Assistance Examples of Technical Assistance that is available: Court and Program Evaluations and Assessments Site visits to identify problems or challenges and to brainstorm solutions Sample codes Regional trainings (issue specific) Research and resource materials Grant related technical assistance Scholarships for non-grantees to attend training events 3

THIS REGIONAL CONFERNCE As with many of our regional conferences we have identified a specific portion of the law that directly impacts tribal courts and have compiled an agenda designed d to: Provide information that will help to educate on foundational doctrines of law regarding civil jurisdiction and tribal courts Identify emerging issues in specified civil arenas Provide an opportunity for audience participation and discussion The Role of Tribal Courts in Resolving Civil Disputes Michelle RivardParks Associate Director, Tribal Judicial Institute Professor, UND School of Law Tribal Sovereignty The ability to makes ones own laws and to be governed by them Tribes have inherent rights to be self-governing predating the United States Constitution See Talton v. Mayes, 163 US 376 (1896)(US Constitution has no application to the actions of tribal government or tribal courts). Inherent Tribal Self-Governance is recognized by the United States through: Treaties Indian Reorganization Act Oklahoma Indian Welfare Act Specific Federal Legislation Marshall Trilogy tribal self-governance is not absolute Justice Marshall determined that Tribes are domestic dependent nations subject to the Plenary authority of the Federal Government 4

TRIBAL COURTS And TRIBAL SOVEREIGNTY HISTORICALLY Indian Nations had dispute resolution methods long before formal tribal courts were developed Ex Parte Crow Dog (1883) was the impetus for early tribal court development in this case the United States Supreme Court recognized the inherent right of Indian Nations to resolve their own internal conflicts--even for serious felonies The Congressional response to Crow Dog resulted in the passage of the Major Crimes Act (18 USC 1153) and the creation of CFR Courts (many have which have since been replaced by adversarial tribal courts supported further through the 638 contracting process) TRIBAL COURTS TODAY Vary from tribe to tribe in terms of form, function and law Traditional Courts Diversionary Courts Adversarial Courts Courts of General Jurisdiction (Criminal, Civil, Child and Family) Courts of Limited Jurisdiction (ie. ICWA only courts) 5

Tribal Courts Essential to the protection and preservation of tribal sovereignty Increasingly important to have strong tribal courts that are able to: Enforce laws in a manner that is consistent with community values, norms and practices Interpret laws in a manner that is consistent with community values, norms and practices Ensure that there is a local tribal forum for dispute resolution to ensure that disputes are not being resolved by forums outside of tribal communities that are not familiar with tribal customs, traditions and norms ***A key point is that Judges can only do what the law enables them to address*** Tribal Laws Tribal laws and codes are the reflection of community values, standards and norms in many contexts such as: Children and family matters (custody, divorce, child protection, adoption etc.) Enrollment disputes Election Disputes Probate Tribal laws and codes are also a important in other arenas such as: Economic development (Gaming, Industry, investments etc) Regulation of activities within the community Zoning (defining tribal landscapes etc) Contract Disputes Complexities facing tribal courts Tribal Courts are in a tough spot because they must: 1. Respond to European notions of justice in order to achieve recognition and enforcement of tribal court orders such as Due process Notice Opportunity to be heard Attorneys?/ adequate legal representation 2. Stay true to tribal notions of justice as well as the customs and culture of the tribal community they serve **These two factors oftentimes conflict*** 6

Exhaustion of Tribal Remedies National Farmers Union Insurance Company v. Crow Tribe, 471 US 845(1985) Civil Jurisdiction over non-indians is to be determined on a case-by-case basis EXHAUSTION DOCTRINE: Litigants must exhaust tribal remedies before filing causes of action in federal court With strong tribal courts issuing sound legal decisions tribes are able to make their own laws and be governed by them WITHOUT interference by state and federal courts How can we strengthen our Tribal Courts? Sound legal decisions & well written court orders Well-trained judges Trained in existing tribal law Trained on intersections of federal, state and tribal law Trained or well-versed in customs, traditions and culture of the community that they court is serving Professional & well-trained staff Adequate record maintenance (proper, effective and efficient record maintenance lends itself to positive perceptions regarding the integrity of the Court) CIVIL DISPUTES IN TRIBAL COURTS 7

In Civil Court. We are handling disputes that involve disputes involving: PRIVATE CITIZENS: tribal members tribal members and non-tribal members GOVERNMENT/ GOVERNMENTAL ENTITIES: tribal members and tribal government tribal members and tribal entities &/or businesses tribal government and outside entities Sovereignty & sovereign immunity are likely to be an issue in cases wherein the tribal government, tribal entity &/or tribal agency is named as a party to the action Questions often arise as to how far the blanket of immunity extends Sovereign Immunity Is an inherent right of all governments including tribal governments and is rooted in common law Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) Affirmed that Tribes enjoy immunity from suit Enrollment dispute which was filed in federal court as an alleged violation of the ICRA (equal protection) Tribal Courts are appropriate forums for applying & enforcing substantive provisions of ICRA See also Kiowa Tribe of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751, 754 (1998) May be waived (generally such waivers must be express see tribal code for specific requirements for waivers) Tribal Sovereign Immunity When it DOES Apply Official actions of: Tribal government Tribal officials and agencies Tribal Entities/ Enterprises When it DOES NOT apply Congressional abrogation When tribe has voluntarily waives immunity for limited purpose May occur by tribal statute or ordinance May occur by contractual provisions or resolution etc. When tribal official acts outside the scope of the government s authority 8

Tribal Courts in Action Let s discuss a few interesting issues Election Disputes Especially tricky in tribal communities where seated judges are often voting members and even more tricky if there is no separation of powers Often arise in terms of: candidacy; election board deviations; issues at polling sites Other? Best practice tip: utilize outside judges who are familiar with tribal law, custom & tradition Enrollment Disputes A huge issue with BIG consequences because enrollment is not only about identity it is also about: Access to health services Access to education Access to financial assistance, employment etc. In some instances ability to reside within the tribal community Can be very challenging depending up the existence or clarity provided by tribal enrollment laws &/or policies Often involve alleged ICRA violations (must be brought in tribal court) Best Practice Tip: ensure that enrollment laws include very clear requirements or criteria for enrollment; be sure that enrollment boards or committee roles are clearly defined; develop policies and procedures wherever possible (all of these procedures/ documents will help in the event that a dispute arises) 9

Human Resources Cases we are seeing in this arena will either involve employment with the tribal government or with a tribal agency/ entity Often disputes surround hiring (preferences); termination; disciplinary actions; harassment etc. Best Practice Tip: all tribal governments, agencies and entities should have well developed official policies and procedures. Tribe should determine whether federal labor laws will have any application (in some instances application will be mandated especially if federal dollars fund a project) If administrative bodies are going to be used to resolve disputes then the role of the court should be clearly defined in such policies and in applicable statutes (ie. What is the review of the court limited to if at all) SORNA Civil Regulatory Jurisdiction over Sex Offenders Purpose is to track and monitor sex offenders Requires enforcement, interpretation & classification of convictions from tribal, federal & state courts May require some legislative creativity and perhaps some creative civil remedies for failure to register especially when individual is non-indian Judges need to become familiar with applicable tribal and federal sex offender laws Economic Development secured transactions (loan defaults etc---how many tribes have Commercial Codes) FTCA (tribal employees/ contractors are deemed agents of the federal gov t for FTCA purposes) Limited waivers of immunity are common & contributing to increases in cases being filed against Tribes See also C&L Enterprises v. Citizens Band of Potawatomi, 532 U.S. 411 (2001) Form construction contract included arbitration under American Arbitration Association as dispute resolution method. Supreme Court found that provision was a waiver of immunity & that the Rules of the AAA also included avenue to enforce arbiters award in state court. 10

MINIMIZING JURISDICTIONAL CONFLICTS Cooperation & Communication Tribal-State Court Forums are a valuable tool for reducing conflicts between tribal and state courts and for fostering communication in important matters such as: ICWA Domestic Violence Contracts/ Economic Development Hunting & Fishing Etc. The focus of such forums is to discuss issues relating to jurisdiction and to develop strategies to minimize jurisdictional conflicts Minimizing such conflicts reduces costs for litigants and courts, ensures effective adjudication of cases for litigants, Tribal-State Court Forums Primary purpose is to get Tribal and State court systems working in concert and not in conflict Chief Justices of several state supreme courts have appointed people to serve on such forums (1990 s present) Theses forums help to: Foster mutual respect between jurisdictions Effectuate full faith & credit or comity Develop necessary statutes or rules to resolve jurisdictional issues (such as those relating to enforcement or recognition) Educate state and tribal officials on matters relating to courts 11

To further support the need for communication Congress has passed federal laws requiring state and tribal courts to honor and enforce each other s child support orders, see 28 USC 1738B, and each other s domestic violence protection orders, see 18 USC 2265 tribal child custody orders as part of the Indian Child Welfare Act. See 25 U.S.C. 1911. ENHANCING TRIBAL COURTS Additional Resources for Tribal Court Development & Enhancement. Training and technical assistance is available through Bureau of Justice Assistance at no charge to Judges and Court Personnel Online services willing to publish codes and court decisions Beyond existing 638 contract financial resources to enhance court services there are a number of other options for Courts: Department of Justice Programs such as CTAS Program (includes Tribal Court Assistance Program) OTHER RESOURCES 12