A PORTRAIT OF TRIBAL COURTS: TRIBAL COURT TOOLS AND LEVERS TO ENSURE PROCEDURAL FAIRNESS FOR SELF-REPRESENTED LITIGANTS.

• Author: Mayberry, Danielle J.

There are three distinct sovereign entities in the United States: the federal government, state governments, and Indian Tribes. (1) Each sovereign entity possesses its own distinct judicial system. (2) Even though there are similarities among state, federal, and tribal courts, "tribal courts are not United States courts." (3) The differences between the state and federal courts and tribal courts are due to the incorporation of cultural values and customs into the process and the different perceptions of justice. For example, in the Matter of Seanez, the Navajo Nation Supreme Court addressed a case in which an attorney faced permanent disbarment for conduct that violated Navajo laws. (4) In reaching a decision on whether an attorney should be permanently disbarred for gross misconduct, the Navajo Nation justices declined to permanently disbar the attorney. (5) In reaching that conclusion, the Navajo Nation justices determined that permanent disbarment serves no healing purposes and concluded that "this Court will do what it can in an effort to turn such things into positive dew or corn pollen." (6) The structure of tribal courts, legal processes, and tribal laws varies from one Indian Nation to another. However, the efforts of tribal courts to resolve disputes in a more restorative and compassionate manner includes more than only applying principles of traditional laws and customs to its cases.

Similar to state and federal jurisdictions, individuals utilizing tribal judiciaries at times struggle with navigating the processes, filing petitions, and presenting arguments to the court. In some cases, appearing in court may be traumatic. Furthermore, in the vast majority of cases, individuals are doing this without legal representation. As illustrated by the interviews with tribal court judges, staff, and the authors' experience in tribal courts, tribal judiciaries have prioritized efforts to make tribal court more user-friendly and ensure access to justice. These efforts include revamping petitions and other legal forms and adding resources to tribal court websites. In order to address the lack of available attorneys, many Indian Nations allow for lay advocates to represent parties before tribal courts. Judiciaries across the nation are engaging in efforts to make their courts more user-friendly. The approach by tribal courts is unique, but tribal judges and court staff must still balance legal and ethical obligations.

This article will first provide an overview on the creation and background of tribal courts. Next, it examines the practices tribal court judges and staff use to provide access to justice. These practices were elucidated from interviews with tribal judges and our own experiences and work on increasing self-represented parties' access to justice. Once in the courtroom, tribal court judges use their discretion to balance the judicial ethics of impartiality with telling the story of the judicial process to help parties understand their roles and responsibilities. Courtroom language and environment are adapted to be trauma informed to reduce the overwhelming fear of coming to court. Finally, this article examines the use of lay advocates to demonstrate how tribal courts provide more access to justice than many state courts.

1. OVERVIEW OF TRIBAL COURTS

   Since time immemorial, Indian Nations have administered justice in their communities. Prior to contact with settlers, those responsible for settling disputes in tribal communities between tribal members applied traditional law and customs. (7) This form of justice was interrupted by the creation of Courts of Indian Offenses (CFR Court) in the 1880s, the enactment of the Indian Reorganization Act of 1934 (IRA), and other factors such as forced migration, settlement on reservations, and the imposition of unfamiliar Anglo-American institutions. (8) Many of the tribal courts that exist today stem from the IRA because Indian Nations adopted constitutions and created judiciaries following the passage of that act. (9) Other Indian Nations established tribal judiciaries through tribal law. (10) There are also tribes that have not created a judicial forum and disputes are resolved by tribal leadership such as tribal councilmembers. (11) Some tribes have created alternative dispute mechanisms within their judicial processes and laws or established problem-solving courts such as a peacemaker court. (12)

   The administration of justice in tribal communities is multifaceted and the structures of tribal judiciaries are decided by each Indian Nation's leaders and membership. No tribal judiciary is identical to another and structure varies from tribe to tribe. "More than 500 federally recognized tribes in the United States operate between 250 and 300 trial courts" and there are more than 150 tribal appellate courts. (13) Many tribal courts look similar to federal and state courts, but they remain tribal. (14) Tribal judicial systems tend to utilize a restorative justice approach and place an emphasis on keeping harmony in the community. (15) To support this objective, tribes adopt laws that include restorative justice principles. (16) Tribal courts also range in resources and size. For example, the Navajo Nation judicial system is a large court system with a specialized Peacemaker Court. (17) The Navajo judicial system is made up of a supreme court, district courts, and has administrative offices of the courts. (18) This structure requires numerous judges and court staff to administer the Navajo courts. In contrast, smaller tribal judiciaries have fewer court staff and available resources.

   Today, tribal courts are located throughout the country in mostly rural areas. Most tribes have designated buildings for their courts. Typically, smaller tribal judiciaries are housed in one building and larger tribal courts may be spread between two or more buildings. Upon entering most tribal courtrooms, one is usually aware of the influence Anglo-American notions of adversarial justice due to the organization of the courtroom. (19) In these courtrooms, there are typically desks for the parties, and the tribal judge and the court clerk are at a bench or separate desks. (20) Tribal courtrooms include microphones, recording devices, and other tech-related equipment that you see in other courts. (21)

   In general, "Tribal courts often follow a hierarchy of law based upon: (1) prior decisions of the same court based on the local tribal statutes and customary law principles, (2) the tribal decisions of other Tribal courts, (3) relevant federal court decisions, and (4) relevant state court decisions." (22) Most Indian Nations have promulgated rules of civil procedure. (23) Some tribes adopt rules that resemble the Federal Rules of Civil Procedure and others enact civil rules that contain similar provisions, but are unique to that tribe. (24) Generally speaking, the rules enacted by tribes provide the relevant processes for parties seeking to commence legal action, rules for service, and remedies that may be sought by a litigant and defenses. In most cases, the rules also include guidance on the kinds of information that pleadings must contain and the consequences of failing to meet these deadlines such as the entering of a default judgment. (25)

   Tribal courts handle a wide variety of cases. The subject matter jurisdiction of each tribal court varies based on tribal law. Moreover, the United States Supreme Court has also played a part in limiting criminal and civil jurisdiction. (26) As in all cases, the matters the court is deciding are of paramount importance to the parties. In the majority of cases, due to the remoteness of reservations and the financial means of the tribal populations that reside there, litigants rarely appear with professional legal representation. For purposes of this article, professional legal representation means an individual who has a law degree and is licensed to practice law. As a result, most litigants are self-represented and forced to navigate the complexity of legal filings and deciphering tribal law themselves to make arguments.

2. ACCESS TO JUSTICE: THE CHALLENGES FACED BY SELF-REPRESENTED PARTIES

   To combat the barriers experienced by self-represented litigants, many tribal courts have taken the initiative to make their court more user-friendly to ensure litigants have access to justice--or in other words, get the legal help they need, understand court procedures, and get a decision on the merits. Tribal court staff play a vital role in the process because tribal court staff regularly interact with litigants and help guide them through the process. Tribal court staff also strive to assist parties with the filing process, while maintaining their ethical obligations. Tribal court judges balance their ethical obligations while trying to ensure self-represented parties understand the process. Tribal court staff and judges also implement trauma-informed practices to make the courtroom environment feel less daunting. Finally, many tribal courts use lay advocates to fill a gap left by lack of legal services. These efforts are to ensure that procedures do not stand in the way of a just result. (27) Moreover, the methods used by tribal court staff and assistance offered is unique to tribal judiciaries.

   To most individuals, courts can be intimidating, discouraging, and foreign. This is due to a variety of reasons such as the complicated legal processes and unfamiliar terminology used in court processes. Tribal courts can also be seen as a barrier to justice by their community. This perception is usually based on arguments such as the court is applying foreign law or questions about the authority of the tribal court. Tribal judges and personnel notice the challenges faced by self-represented litigants, which are not unique to tribal courts. For example, the State of New York Unified Court System established the Permanent Commission on Access to Justice in...