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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