NATIVE AMERICAN TRIBAL APPELLATE COURTS: UNDERESTIMATED AND OVERLOOKED.

• Author: Smith, Gregory D.

1. INTRODUCTION

   The more than 500 federally recognized Native American tribes in the United States (1) operate between 250 and 300 trial courts and more than 150 appellate courts. (2) Although the quality of tribal court systems and the prestige and respect accorded to them all continue to rise, (3) tribal courts still endure occasional condescension by non-tribal jurists. (4) Yet "[w]hen judges, either trial or appellate, treat parties or their lawyers with anything less than respect, it reflects poorly on both the individual judge and the judicial system a whole." (5) State and federal judges should not underestimate the Native American tribal court system.

   The congressionally mandated federal policy to develop, fund, and support tribal courts in Indian Country is to include tribal appellate courts. (6) "Tribes that have trial courts typically also have an appellate court," (7) although there is no federal requirement that a tribe have an appellate court if it has a trial court. (8) This essay will discuss some of the traits typical of tribal appellate courts to show both that the system is professional and that it deserves better recognition than tribal appellate courts currently receive.

2. BACKGROUND: A SHORT HISTORY LESSON

   There is a general perception that tribal appellate courts are a new and novel creation of the mid-twentieth through early twenty-first centuries. (9) This is wrong. Some scholars trace the roots of tribal courts to Ex Parte Crow Dog (10) This presumption is also incorrect. While Crow Doe and the Indian Reorganization Act of 1934 (11) greatly bolstered the initiation of

   Native American tribal courts, the Cherokee Supreme Court was created even before enactment of the first Cherokee Constitution in 1827. (12) That court pre-dates President Jackson's initiation of the Trail of Tears, which moved most of the Cherokee Nation from Georgia and Tennessee to the land making up present day Oklahoma in the 1830s, (13) and was viable for over fifty years before the Supreme Court decided Crow Dog. By way of perspective, the Cherokee Supreme Court began operating prior to half of the states gaining admission to the Union. (14) On the other hand, some tribal appellate courts, such as the Bishop Paiute Court of Appeals, are only a few years old. (15) Irrespective of the age of a tribal appellate court, all have the goal of providing fundamental fairness and due process to all litigants. (16) Native Americans are often unfairly perceived by the public as backwards and unsophisticated. (17) There are also questions of tribal judges being biased against non-Indians. (18)

   This is ironic since Congress has acknowledged that the United States Constitution is based largely on the Iroquois Confederation's Great Law of Peace, (19) which pre-dates Magna Carta. (20) Despite this history, Native Americans are still relegated to "demonstrating to the non-Indian public, including the federal judiciary and Congress, that tribal governments are committed to providing due process." (21) Comparing this unflattering view with tribes such as NHBP pumping millions of dollars yearly into state and local revenue coffers suggests that the influence of tribal governments--including tribal courts--is overlooked due to stereotypes of how outsiders expect Native Americans to look or act. (22)

   President Truman once declared that "[s]ome of the greatest leaders this country ever produced were the leaders of the Indian tribes. (23) This opinion equally applies to tribal appellate courts. By way of example, the supposedly unsophisticated Indians elected Jesse Franklin, an African-American freedman, to the Creek Nation Supreme Court in 1876, (24) while Thurgood Marshall, the first African-American member of the United States Supreme Court, took the bench in 1967. (25) Alabama's first African-American supreme court justice, Oscar W. Adams, Jr., took the bench in 1980, (26) over 100 years after Justice Franklin took his seat. (27) Native American appellate courts deserve recognition and respect for being progressively ahead of their state and federal counterparts regarding race relations. This essay will address additional areas in which the quality of tribal appellate courts is underestimated and overlooked.

3. COURT STRUCTURE SIMILARITIES

   Most tribal appellate court systems hear cases in panels of three judges appointed by the tribal council, although some tribal judges are elected. (28) This is similar to the traditional protocol used by the federal courts of appeals. (29) Similarly, the members of tribal appellate courts enjoy "absolute immunity for all judicial actions that are not 'taken in a complete absence of all jurisdiction'" because the '"long-standing federal policy supporting the development of tribal courts' for the purpose of encouraging tribal self-government and self-determination" requires that tribal-court judges have "the same absolute judicial immunity that shields state and federal court judges." (30)

   Most tribes require at least some of the judges on the tribal appellate bench to be law trained. (31) Tribes vary as to whether a potential appellate judge must be a tribal member, Native American, lawyer, non-lawyer lay advocate, or have some combination of any of these qualifications. (32) Some tribes allow a single judge to sit as the appellate court on certain types of cases, (33) while other tribes contract with an outside appellate brokerage service that handles appeals for multiple tribes. (34) The number of judges or justices serving on a tribal appellate court may differ: the Pawnee Nation Supreme Court has five justices who always sit en banc, for example, while the Oneida Court of Appeals has five judges who usually sit in panels of three. (35) The most common number of judges sitting on tribal appellate courts is three, (36) five, (37) or seven. (38) Usually, a tribe has a single appellate court that acts as the tribe's supreme court, which is also how nine state appellate systems function, (39) but a few tribes, such as the Mohegan Tribe, have multi-level appellate systems that provide for Tribal Council review and reversal of appellate decisions. (40)

   Tribal appellate courts work and act similarly to state and federal appellate courts. (41) Tribal appellate courts review cases on the record, just as state and federal appellate courts review their cases. (42) The basic briefing procedures in tribal courts are also identical to those used in state and federal appellate courts and the relevant processes are set out by ordinance or rules of court. (43) Oral arguments are normally allowed in tribal appellate courts, but as in state and federal appellate courts, sometimes may be held by Skype or conference call. (44)

   Like all court systems, tribal appellate courts face budget issues and variances as to the facilities and resources available. (45) Some tribal appellate courts sit in multi-court and modern facilities. (46) Other tribal courts meet in makeshift facilities, such as trailers, that are not as impressive, but those surroundings do not affect their sovereignty; these courts all address issues of equal importance. (47)

   Lack of funds, staff, or resources is not an excuse for denying due process in any court, be it tribal, state, or federal. (48) The Navajo Supreme Court has suggested that the tribe should turn to federal authorities if tribal resources cannot support substantial justice and due process. (49) The Mashantucket Pequot Tribal Court once directed tribal judges to turn to state law to address issues of first impression that are not controlled by Mashantucket Tribal Court precedents or tribal ordinances. The court has in recent years increasingly acknowledged the development and application of Mashantucket case law and statutes, and the use of similar sources in the courts of other Native American nations around the country, and has instituted a preference for their use. (50) Even so, the similarities between tribal appellate courts and state or federal appellate courts, from intent to application and implementation, are clear and should not be overlooked. (51)

4. COURT STRUCTURE DIFFERENCES

   A significant difference between tribal appellate courts and their state and federal counterparts is that many tribes, such as the Gila River Indian Community, include non-lawyer community judges as members of the appellate court, which allows input from the tribe on legal decisions directly affecting the tribe. (52) Further, again using Gila River as an example, some tribal appellate courts have alternate appellate judges who sit on a pro tern basis when conflicts arise that bar one of the primary judges from hearing a case. (53) There are several other structural differences between tribal appellate courts and the appellate courts in the state and federal system that, as the Supreme Court has acknowledged, "are influenced by the unique customs, languages, and usages of the tribes they serve." (54) Those differences must be considered in connection with the history, traditions, and circumstances of each individual tribe.

   Another difference is that lay advocates frequently appear in tribal appellate courts, but are seldom seen in state appellate courts or the federal courts of appeals. (55) A lay advocate is usually a non-lawyer who hopefully has some sort of legal training. (56) Some lay advocates provide excellent representation, while others flounder in their efforts. (57) Appearances by lay advocates and pro se litigation in tribal appellate courts are so common that they prompted the author to prepare a two-part guide for non-lawyer presenters of tribal-court appeals to help facilitate due process. (58)

   Probably the most obvious difference between the tribal appellate court system and state or federal appellate courts is that the U.S. Constitution's Bill of Rights does not apply to Indians (59) on tribal lands or in tribal courts. (60) A tribal government is not required to follow the...